Wednesday, August 30, 2017

Is Ombudsman Morales "overstaying"? - Duterte pretends to be an expert constitutionalist and scholar-king.

Duterte claims that Ombudsman Morales is allegedly "overstaying" in her constitutional office. The logic of Duterte is that since the predecessor of Morales (i.e., Gutierrez) had resigned in the sixth year of her seven-year term during the Aquino administration, Morales, as the successor, must be deemed to have assumed office only to the extent of the "balance" of the seven-year term of her predecessor (i.e., one year).

Perhaps, Duterte is thinking of the 2012 case of Funa v. Villar (re: COA chairmanship issue). See -…/…/april2012/192791.htm. In that case, the SC held that when a COA chair resigns or is impeached or is incapacitated (which is different from "expiration of term of office") the new appointee shall merely assume the "balance" of the "unexpired term" of the former COA chair.

The foregoing case of Funa vs. Villar is not applicable to the Office of the Ombudsman. It refers solely to the COA. The Office of the Ombudsman is covered by a separate article of the 1987 Constitution (i.e., Article XI).

The relevant provisions of Article XI of the 1987 Constitution with respect to the qualifications and term of office of the Ombudsman are as follows:

"Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines.

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

Section 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary which shall not be decreased during their term of office.

Section 11. The Ombudsman and his Deputies shall serve for a term of SEVEN YEARS without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office."

The SC ruling in Funa v. Villar did not refer to the aforecited provisions of Sec. 8 to Sec. 11 of Article XI of the 1987 Constitution which exclusively refer to the Office of the Ombudsman.

Moreover, under Sec. 7 and Sec. 8 of R.A. 6770, otherwise known as the "Ombudsman Act of 1989", it is provided:

"Section 7. Term of Office. — The Ombudsman and his Deputies, including the Special Prosecutor, shall serve for a term of SEVEN (7) years without reappointment.

Section 8. Removal; Filling of Vacancy. — (1) In accordance with the provisions of Article XI of the Constitution, the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.

(2) 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, and after due process.

(3) In case of vacancy in the Office of the Ombudsman due to death, RESIGNATION, removal or permanent disability of the incumbent Ombudsman, the Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity until a NEW OMBUDSMAN shall have been appointed for a FULL TERM. In case the Overall Deputy cannot assume the role of Acting Ombudsman, the President may designate any of the Deputies, or the Special Prosecutor, as Acting Ombudsman.

(4) In case of temporary absence or disability of the Ombudsman, the Overall Deputy shall perform the duties of the Ombudsman until the Ombudsman returns or is able to perform his duties." (See -…/repu…/Republic_Act_No_6770.pdf).

As a brother lawyer, may I humbly suggest to Duterte that before he opens his arrogant and manipulative mouth to pronounce misleading, if not fake, constitutional doctrines, he should first order his Malacanang lawyers to do prior legal research to educate and guide him on the constitutional and legal issues involved and to temper his inflated ego and uncontrollable tongue. He should stop pretending to be an expert constitutionalist and scholar-king.