THE IMPEACHMENT trial of Ombudsman Merceditas Gutierrez may be an exercise in futility and a waste of time, effort, saliva and at least P20 million of the people’s money. (P15 million for the Senate trial and P5 million for the House prosecution team. How many schools or how many homes for the homeless will that build?) According to legal experts led by Ateneo law professor Alan Paguia and former Dean Froilan Bacungan of the UP College of Law, Merci is no longer the Ombudsman. Thus, there is no more need to impeach her. Here is why:
The Constitution is very clear on the term of the Ombudsman—seven years without reappointment. There is no need for interpretation when the law is clear. Simeon Marcelo was appointed in 2002 for the seven-year term, which would have ended in 2009. However, Marcelo resigned in 2005 and Merci Gutierrez was appointed to replace him. Therefore, Merci’s tenure was to serve the unexpired portion of Marcelo’s term, or until November 2009. Ergo, her term has expired by operation of law; she was no longer Ombudsman since 2009; she has been overstaying and all her actions as Ombudsman since then are void.
Merci claims, however, that she was appointed by President Gloria Macapagal-Arroyo to a new term, based not on the Constitution but on the special law creating the Office of the Ombudsman. That law provides that in case of vacancy, the Deputy Ombudsman will serve as the Ombudsman until a new one is appointed. That new one is Merci. Therefore, there is a conflict in the provision of the Constitution and the law passed by Congress. It is fundamental in law that in a conflict between the Constitution and a law, the Constitution prevails. All the laws of the land must follow the Constitution.
The Constitution provides that the term of the Ombudsman expired in 2009, regardless of what the special law says. Merci was no longer Ombudsman for the last two years as she merely inherited four years of Marcelo’s term which ended in 2009. Yet she dismissed many cases during the two years that she was acting as an overstaying Ombudsman.
Those dismissals are void, according to the legal eagles, as Merci’s acts after said expiration were without jurisdiction and therefore not valid. The dismissals being void, the charges against the accused can and should be reinstated.
By the same token, those cases she filed are also void from the very beginning, as if no cases were filed by the Ombudsman with the Sandiganbayan.
That is why Paguia said it appears that the impeachment process is a “grand cover-up” of Merci’s illegal acts by those who, directly or indirectly, “benefited from them.”
Who are those powerful and influential beneficiaries? The senators, congressmen, Cabinet members, governors, mayors and other officials whose graft cases were dismissed by Ombudsman Gutierrez. The impeachment process legitimizes her two years as overstaying Ombudsman, and therefore also her official acts during those two years, including the dismissal of graft cases and her approval of the plea bargain of Maj. Gen. Carlos Garcia. If Merci was no longer the Ombudsman since 2009, those dismissals would have to be reinstated and the Garcia plea bargain voided.
All that President Benigno Aquino III has to do now is to declare the position of Ombudsman vacant and appoint a new one. Let Merci question it at the Supreme Court. Considering the slowness of the wheels of justice, no thanks to the high tribunal, by the time it comes to a decision on Merci’s case, her claimed new term (which is due to expire next year) would be over anyway. So it doesn’t matter what decision the high court makes. Even if it declares that Merci is still the Ombudsman, her term would be over by operation of law. (By the same token, by the time the impeachment trial is finished, Merci’s new term would have already expired. What a waste.)
Meanwhile, while the case is being litigated, P-Noy’s appointee would be acting as the Ombudsman and therefore his administration can go on with its anti-corruption drive. P-Noy can no longer say that its corruption campaign has stalled because of Merci. (If the Court rules in favor of Merci, however, all the new Ombudsman’s acts would be voided. But at least the evidence against the accused would have been presented and it would be easier to prosecute again the same cases.)
All of the above should have been known by the President’s legal advisers, Paguia said. So what have they been doing? The Aquino administration is full of lawyers; why are they not giving the President the correct advice? What is the solicitor general, the counsel of the government, doing? What is the secretary of justice and the presidential legal adviser doing? What is the Integrated Bar of the Philippines, the Philconsa, or the law deans of the universities doing? P-Noy not being a lawyer, he is not expected to know all that. But what about his legal advisers?
But maybe they are simply not as bright as they think they are. Maybe they are just ignorant of the law. But ignorance of the law exempts no one. The law still has to be obeyed.
So why doesn’t somebody file a case in the Supreme Court to clarify the matter? If I were one of those officials against whom Merci has filed a case for graft with the Sandiganbayan, I would question her jurisdiction as Ombudsman as her term has already expired. If she is declared no longer Ombudsman, then the cases she filed against me and others would be voided.
And with so many lawyers in the Philippines, it is hard to believe that not many of them have thought about what Paguia, Bacungan et al. are saying. That is why I suspect that the Aquino administration is using Merci as a convenient scapegoat to rationalize its failure to pursue its promise to wage an all-out war against corruption.
When in Cebu City, please visit gregmelep.com for your retirement and real estate needs.
Source: Philippine Daily Inquirer
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