c. Section 8(2) of RA No.

6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak
for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the
independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting 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. The Office of the Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA
No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks
and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials who are not as independent as she
is, if only because they are subject to pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.

The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed
his apprehension that any form of presidential control over the Office of the Ombudsman would
diminish its independence.  The following exchanges between Commissioners Blas Ople and
51

Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman
independent from the President:

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good
government, efficiency of the public service and the integrity of the President of the Philippines,
instead of creating another agency in a kind of administrative limbo which would be accountable to
no one on the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee — and I believe it still is — that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those functions and to produce a vehicle that will
give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the
proposition.52

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is given
the duty to adjudicate on the integrity and competence of the very persons who can remove or
suspend its members. Equally relevant is the impression that would be given to the public if the rule
were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President’s favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.

d. The mutual-protection argument for

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of
an external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this
concern stands on shaky grounds since it ignores the existing checks and balances already in place.
On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to
cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari.
The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-
political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes,
whose judges and employees are not subject to the disciplinary authority of the Ombudsman and
whose neutrality would be less questionable. The Members of the Court themselves may be
subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with its established rulings - that the independence
granted to the Constitutional Commissions bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.

e. Congress’ power determines the

Under Section 2, Article XI of the 1987 Constitution,  Congress is empowered to determine the
53

modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other public officers and
employees may be removed from office as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of
"removal only by impeachment" to favored public officers.  Understandably so, impeachment is the
54

most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process  that signals the need for a judicious and careful handling as shown by
55

the process required to initiate the proceeding;  the one-year limitation or bar for its initiation;  the
56 57

limited grounds for impeachment;  the defined instrumentality given the power to try impeachment
58

cases;  and the number of votes required for a finding of guilt.  All these argue against the extension
59 60

of this removal mechanism beyond those mentioned in the Constitution.

On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical effects
of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive of the nation.  Thus, in a cost-
61

benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of removal it deems fit. While the manner
and cause of removal are left to congressional determination, this must still be consistent with
constitutional guarantees and principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the principle of separation of powers; and
the principle of checks and balances. 62

In short, the authority granted by the Constitution to Congress to provide for the manner and cause
of removal of all other public officers and employees does not mean that Congress can ignore the
basic principles and precepts established by the Constitution.

In the same manner, the congressional determination of the identity of the disciplinary authority is
not a blanket authority for Congress to repose it on whomsoever Congress chooses without running
afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the
delicate check and balance mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is observed and any possible
absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution
itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle
of independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec  is apt:
63

The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since
these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment
- this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman
that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy
Ombudsman’s head, by itself, opens up all the channels for external pressures and influence of
officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting independence to the Office of the
Ombudsman.

That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and that
the President’s power of removal is limited to specified grounds are dismally inadequate when
balanced with the constitutional principle of independence. The mere filing of an administrative case
against the Deputy Ombudsman and the Special Prosecutor before the OP can already result in
their suspension and can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be reduced to the very same ineffective
Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.

At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OP’s decision perfectly illustrates why the
requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at
a minimum, a measure of protection of the independence of the Office of the Ombudsman.

C. The Deputy Ombudsman: The Dismissal Issue

a. The Office of the President’s

The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:

Upon consideration of the First Report, the evidence and allegations of respondent Deputy
Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate
and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed
on 5 November 2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of
official duty.
64

b. No gross neglect of duty or inefficiency

Let us again briefly recall the facts.

1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,  which was followed by a Supplement to the Motion for Reconsideration;
65 66

2. December 14, 2009  - GIPO Garcia, who was assigned to review these motions and make
67

his recommendation for the appropriate action, received the records of the case;

3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate
superior, Dir. Cecilio;68

4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order; 69
 5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales
endorsed the draft order for the final approval of the Ombudsman. 70

Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.

Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be
affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant
and palpable. 71

Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP  relied on Section 8, Rule III of
72

Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for
Reconsideration within five days:

Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of the following grounds:

a) New evidence had been discovered which materially affects the order, directive or
decision;

b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to
the interest of the movant.

Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution. [emphasis and
underscore ours]