The Carandang conflict: Threat to checks and balances

Lian Buan
The Carandang conflict: Threat to checks and balances
'I don’t think the President is comfortable in any notion that anyone can exercise a check on his office,' says constitutional law professor Dan Gatmaytan

MANILA, Philippines – Will the Office of the Ombudsman remain independent, or will President Rodrigo Duterte be successful in reclaiming power over the Deputy Ombudsmen?

It’s a looming court battle that stemmed from Malacañang’s suspension of Overall Deputy Ombudsman Arthur Carandang. This, despite a 2014 ruling of the Supreme Court (SC) that took away the President’s power to discipline a Deputy Ombudsman, thus preserving the independence of the Office. The ruling became final and executory on May 7, 2014.

“It doesn’t stop with Carandang. This is an institutional change that they’re after,” Dan Gatmaytan, constitutional law professor at the University of the Philippines (UP) College of Law, said over a phone interview with Rappler on Wednesday, January 31.

After Malacañang issued the 90-day preventive suspension against Carandang, Ombudsman Conchita Carpio Morales came out defiant on Wednesday citing the 2014 SC ruling as basis for not enforcing the order.

This has resulted in a standoff.

What happens next?

Carandang was suspended for alleged illegal disclosure of President Rodrigo Duterte’s bank details. Carandang, the head prober into the President’s wealth, told media that records showed a cash flow of almost a billion pesos.

Morales said that Malacañang’s disregard for the 2014 ruling “was not an inadvertent error but a clear affront to the Supreme Court and an impairment of the constitutionally enshrined independence of the Office of the Ombudsman.”

Reacting to Morales’ defiance, Presidential Spokesperson Harry Roque simply said that now they have to wait for Carandang to officially respond to the order within 10 days after which the Office of the President shall decide on the matter.“

In the long term, this is the scenario we’re looking at: Either Carandang or Morales files a petition before the Supreme Court, or Malacañang goes to the High Court.

Either way, Gatmaytan said Malacañang has achieved what it wanted – to create controversy that the Supreme Court might now have to rule on, opening doors to a reversal. Palace top officials have said they are confident they would get it.

But back to the start. Does Malacañang have basis to enforce an order on a provision that no longer exists in the Constitution as we know it today?

Gatmaytan said this has happened before.

In 2006, then president Gloria Macapagal Arroyo wanted to initiate Charter-Change or Cha-Cha through a method called “People’s Initiative”. The problem was, the SC had ruled in 1997 that there was no law enabling a people’s initiative.

Still, groups allied with Arroyo petitioned the Commission on Elections (Comelec) to implement a people’s initiative but the Comelec en banc denied it. That’s when the Arroyo-allied groups went to the SC seek a reversal. The Office of the Solicitor General (OSG) backed them up.

They lost though, as the SC voted 8–7 to junk the petitions. Fast forward to today and Duterte is looking at the same voting pattern, 8–7.

“The confidence of Malacañang may stem from the fact that the voting was not unanimous,” Gatmaytan said.

Of the 8 majority votes, only Associate Justices Presbitero Velasco, Teresita Leonardo-de Castro, Lucas Bersamin, and Marvic Leonen are sitting justices.

Of the 7 dissenting votes, Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, and Associate Justices Diosdado Peralta, Mariano del Castillo, and Estela Perlas-Bernabe remain in the SC.

“Duterte has never lost in the Supreme Court even with just 4 appointees. He’s winning everything,” Gatmaytan said, even calling the SC’s majority ruling upholding martial law in Mindanao as “really weird and the exact opposite of what the framers wanted.”

Checks and balances

Chief Presidential Legal Counsel Salvador Panelo said that “in suspending Overall Deputy Melchor Arthur Carandang, the President is in fact protecting and preserving the Constitutional article on Public Accountability.”

It is contrary to the wisdom of the SC majority then.

Retired SC justice Arturo Brion, the ponente in the 2014 ruling, said: “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.”

In his concurring opinion, Associate Justice Marvic Leonen said: “It is difficult to imagine how the independence of the Ombudsman can be preserved when the President has concurring powers to remove her deputies.”

“The real fear of the deputies can hobble the Office of the Ombudsman,” Leonen further said.

Retired SC justice Vicente Mendoza also agreed. “To me, the one who can discipline them is the Ombudsman, not the President,” Mendoza said in an earlier interview.

Gatmaytan agreed with them. “If we want to preserve the independence of the Ombudsman [because if not] they’ll just investigate each other and that’s precisely the deadlock the Supreme Court was trying to avoid.”

So Duterte’s move to reclaim power over Deputy Ombudsmen now becomes a threat to checks and balances.

“I don’t think the President is comfortable in any notion that anyone can exercise a check on his office. He doesn’t have any problem with the Congress, because he commands a vast majority of its membership. He doesn’t have a problem with the Supreme Court, he’ll have 11 appointees (by the end of his term), 12 if the Chief Justice is ousted and replaced. His only problem is the Ombudsman,” Gatmaytan said.

Can the SC reverse?

Mendoza said yes – the SC can always change its ruling when a new case comes about.

Scenario for Carandang: the dissenting justices then may concur now, Sereno for example.

But if they do that, it will be a flip-flop.

Sources in the judiciary said flip-flopping shouldn’t be made out to be a big deal, especially when new grounds come about in the backdrop of a new political context.

Gatmaytan predicts that whatever the ruling will be will favor Duterte.

“It’s not unusual for a court to change its mind. Given the new composition of the Court and its present track record, there is a chance that the Court can reverse itself,” Gatmaytan said.

Another scenario: this case could go past July which is when Morales retires, and the President appoints his new Ombudsman. Names being floated include that of Solicitor General Jose Calida, the President’s top defender.

Gatmaytan said that it may not matter who Duterte appoints as Ombudsman because Carandang’s case would have prospered in the Supreme Court and the damage to the Ombudsman’s independence would have been done.

Take all this with a proposal from a House of Representatives sub-committee to clip the powers of the entire judiciary, taking away their power to determine grave abuse of discretion of the executive and legislative branches.

Mendoza said that if it goes through, “it can render the SC powerless.”

Are we now on a path to authoritarianism?

“The signs are not encouraging,” Gatmaytan said. –

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.