SC reverses Palace on dismissal of deputy ombudsman

MANILA, Philippines -  Setting aside Malacañang's decision, the Supreme Court, in a decision dated September 4, ordered the reinstatement of a deputy ombudsman dismissed from office over the Manila bus-taking hostage incident in 2010.

Also in the same decision – released only on Tuesday, September 25 – the SC upheld the President's power to probe and remove the deputy ombudsman and the special prosecutor, and directed the Palace to continue its investigation of Prosecutor Wendell Barreras-Sulit, who helped craft the plea bargaining agreement with former miltary comptroller Carlos Garcia. 

Not 'betrayal of public trust'

Voting 8-6, the High Court said the Palace erred in sacking the former Deputy Ombudsman for miltary and other law enforcement offices, Emilio Gonzales III, saying his failure to immediately act on the case of police officer Rolando Mendoza does not correspond to “betrayal of public trust.”

In a decision penned by Justice Estela Perlas-Bernabe, the SC said that “betrayal of public trust” – since it is an impeachable offense – “must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment.” These include bribery, graft and corruption and other high crimes.

This criteria should apply even if the deputy ombudsman and the special prosecutor are not impeachable officials.

The Office of the President said Gonzales committed betrayal of public trust based on the following grounds: 

a. Gonzales directed the Philippine National Police to transfer Mendoza's case to his office but failed to verify why the Ombudsman should take over the case

b. He ordered Mendoza's dismissal based on an unverified complaint-affidavit and implemented his dismissal even if Mendoza had not yet received a copy of the decision or had not yet exhausted his option of filing a motion for reconsideration 

c. Failure to act on Mendoza's motion for reconsideration deprived the police officer of "available remedies" in opposing the implementation of the decision 

Isolated case

The SC said that inordinate delay -- Gonzales failed to resolve Mendoza's motion for reconsideration for 5 months and failed to make sure his subordinates dispense with the case quickly -- "cannot be considered a vicious and malevolent act warranting his removal for betrayal 
of public trust."

The High Court added that the neglect of duty ascribed to Gonzales seems "to be an isolated case."

The Office of the President removed Gonzales from office on March 31, 2011 for failing to immediately resolve Mendoza's case. Mendoza, a police officer dismissed by the Office of the Ombudsman in 2009, hijacked a tourist bus on Aug 23, 2010, with 8 hostages getting killed. Mendoza was also shot by a sniper.

Mendoza complained that the Office of the Ombudsman failed to act on his motion for reconsideration.

But the SC said the release of the decision was already the responsibility of the Ombudsman, who at that time, was Ombudsman Merceditas Gutierrez -- and not Gonzales'. 

"He (Gonzales) reviewed and denied P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release of any final order on the case was no longer in his hands," the SC said.

Palace probe of Sulit is proper 

The SC, on the other hand, junked Sulit's petition which questioned the constitutionality of Section 8(2) of R.A. No. 6770 (The Ombudsman Act). The said provision gives the President the authority to dismiss special prosecutors.

Sulit said the Office of the President cannot remove her because the Sandiganbayan has yet to finalize its approval of the plea bargaining agreement. 

Garcia, who was initially charged with plunder, was made to surrender P135-million worth of assets in exchange for the withdrawal of the plunder case against him. Garcia then pleaded guilty to lighter offenses of money laundering and direct bribery.

The Sandiganbayan’s second division approved the deal on May 9 because the prosecution, according to the court, failed to prove its case.

The SC said, however, that the status of the plea bargain agreement has no bearing on the administrative case against Sulit.

"The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an administrative finding of liability against petitioner Barreras-Sulit," the SC said.

"While the court's determination of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the disciplinary authority's determination of the prosecutor's administrative liability is based on whether the plea bargain is consistent with the conscientious consideration of the government's best interest and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes against the State."

President has no power

The SC voted unanimously in reinstating Gonzales, but was divided on the constitutionality of the President's power to dismiss the deputy ombudsman and special prosecutor. Justices Antonio Carpio, Diosdado Peralta, Mariano del Castillo, Martin Villarama, Jose Mendoza, Bienvenido Reyes, and Chief Justice Maria Lourdes Sereno concurred.

Brion dissented, saying the President -- who holds a political post -- should not be allowed to remove or discipline officers from independent, constitutional bodies like the Office of the Ombudsman.

Brion was joined in his dissent by Justices Presbitero Velasco Jr, Teresita Leonardo de Castro, Lucas Bersamin and Jose Perez. Justice Roberto Abad also dissented.

"If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770, then the Deputy Ombudsman and the Special Prosecutor will be able to openty defy the orders of the Ombudsman and disregard his policies without fear 
of disciplinary sanction from him. The law makes them subject to investigation and removal only by the President. It is him they have to obey and will obey. Surely, this is not what the Constitution contemplates in an 'independent' Office of the Ombudsman," Brion wrote. -