G.R. No. 196231 - Separate Opinions

Emilio A. Gonzales III v. Office of the President, etc., G.R. No. 196231, 28 January 2014
♦ Decision, Brion [J]
♦ Concurring and Dissenting Opinion, Perlas-Bernabe [J]
♦ Concurring and Dissenting Opinion, Leonen [J]

EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.

WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG LEGAL AFFAIRS, Respondents.

I concur with the ponencia in finding the Decision dated March 31, 2011 of the Office of the President of the Philippines (OP) to be patently erroneous considering that the acts therein attributed to petitioner Emilio A. Gonzales III (Gonzales), in his capacity as Deputy Ombudsman, do not constitute betrayal of public trust. In the Court's Decision dated September 4, 2012 in the main,1 it was explained that the phrase "betrayal of public trust" refers to acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachrnent.2 The OP, however, dismissed Gonzales based on acts which, as thoroughly detailed and discussed in the ponencia, do not fit the foregoing legal description. Accordingly, its (OP) decision was tainted with patent error.

Nevertheless, since the majority voted to declare the jurisdictional basis for the OP's authority to discipline the Deputy Ombudsmen under Section 8(2)3 of Republic Act No. (RA) 67704 as unconstitutional, the fallo of the ponencia states that any further ruling on the dismissal of Gonzales is rendered unnecessary, viz.:5

WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and resgulations.

To my mind, Section 8(2) of RA 6770, which confers the OP with jurisdiction to discipline not only the Special Prosecutor but also the Deputy Ombudsmen, is wholly constitutional. To this end, I join the majority in upholding the provision’s constitutionality insofar as the Special Prosecutor is concerned, but register my dissent against declaring the provision unconstitutional insofar as the Deputy Ombudsmen are concerned.6 The reasons therefor are explained in the ensuing discussion.1âwphi1

In dealing with constitutional challenges, one must be cognizant of the rule that every law is presumed constitutional and therefore should not be stricken down unless its provisions clearly and unequivocally, and not merely doubtfully, breach the Constitution.7 It is well-established that this presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.8

In Victoriano v. Elizalde Rope Workers’ Union,9 the judicious instruction is that the "challenger must negate all possible bases" and the adjudicating tribunal must not concern itself with the "wisdom, justice, policy, or expediency of a statute"; "if any reasonable basis may be conceived which supports the statute, it will be upheld":10

All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted. (Emphasis supplied)

Similarly, as held in Salvador v. Mapa,11 it was held that an "arguable implication" is not enough to strike down the statute subject of constitutional scrutiny; thus, the guiding notion is that "to doubt is to sustain":12

The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful or arguable implication; a law shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt. The presumption is always in favor of constitutionality. To doubt is to sustain. x x x. (Emphases supplied)

Applying this framework, Section 8(2) of RA 6770, both with respect to the OP’s disciplinary authority ver the Special Prosecutor and the Deputy Ombudsmen, should be upheld in its entirety since it has not been shown that said provision "clearly and unequivocally" offends any constitutional principle. By constitutional design, disciplinary authority over non-impeachable officers, such as the Special Prosecutor and Deputy Ombudsmen, was left to be determined by future legislation. This much is clear from the text of the Constitution. Section 2, Article XI of the 1987 Constitution explicitly provides that non-impeachable officers may be removed from office as may be provided by law:

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and 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. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Emphasis and underscoring supplied)

While Section 5, Article XI of the 1987 Constitution "created the independent Office of the Ombudsman" – the provision which is the legal anchor of the majority’s position on this matter – the Constitution neither defines what this principle of Ombudsman independence means nor prohibits the office’s subjection to an external disciplining authority. Meanwhile, what is discoverable from the deliberations of the Constitutional Commission on Article XI, particularly those which are quoted in the ponencia,13 is that the Office of the Ombudsman was merely intended to be a separate office from the Executive. This idea of organizational separation was meant to obviate the Executive Department from exercising the encompassing powers of control and supervision over the Office of the Ombudsman. It is only in this regard that the Office of the Ombudsman was deemed by the Framers as independent.

To be sure, the power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. On the other hand, the power of supervision means "overseeing or the authority of an officer to see to it that the subordinate officers perform their duties." If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them.14 By virtue of these definitions, it is easy to envision how the Office of the Ombudsman’s functions would be unduly hampered if it was to be subjected to executive control and supervision: with control, the Office of the Ombudsman’s actions could be altered, modified or substituted by that of the President, and with supervision, the office would operate under constant scrutiny of a separate but superior authority. With this in mind, the Office of the Ombudsman’s independence should only be construed in the context of organizational separation which does not, as it should not, obviate the possibility of having an external disciplining authority over some of its officials pursuant to the checks and balances principle.

Verily, the principle of checks and balances is not a general apothegm for total insulation but rather of functional interrelation. It is clear that no one office of government works in absolute autonomy. To determine the gradations and contours of institutional independence, one must look into the blueprint of the Constitution which embodies the will and wisdom of the people. This is precisely what Section 2, Article XI of the 1987 Constitution states: non-impeachable officers, such as the Special Prosecutor and the Deputy Ombudsmen, may be removed from office as may be provided by law. Indeed, this provision coupled with the Framers’ silence on the meaning of Ombudsman independence should carve out space for Congress to define, by its plenary legislative power acting as representatives of the people, the parameters of discipline over these so-called non-impeachable officers, including, among others, the Special Prosecutor and the Deputy Ombudsmen.

In any event, without a prohibition that may be clearly and unequivocally ascertained from the text and deliberations of the Constitution against the disciplinary authority provided under Section 8(2) of RA 6770, the overriding approach should operate - to doubt is to sustain; all doubts are to be construed in favor of constitutionality.

Accordingly, I vote to uphold the constitutionality of Section 8(2) of RA 6770 in its entirety.

I vote to dismiss the motion for partial reconsideration.1 However, the constitutional challenge to Section 8, Pai:agraph (2) of Republic Act No. 67702 or the Ombudsman Act insofar as the Deputy Ombudsman is concerned should succeed.

On August 23, 2010, dismissed Manila Police District Police Senior Inspector (Captain). Rolando del Rosario Mendoza took hostage a Hong Kong tour group with three families, two couples, a mother and daughter, and a tour leader at the Quirino Grandstand.3 Apparently, he was driven to despondency by many causes. This included his frustration with a case4 pending against him at the Office of the Ombudsman. In a decision5 dated February 16, 2009, the Office of the Ombudsman found Mendoza and four others liable for grave misconduct. This led to Mendoza’s dismissal from the Philippine National Police as well as the forfeiture of his retirement benefits.

The Ombudsman exercised jurisdiction over this case by virtue of a letter which was issued motu proprio by petitioner, Emilio Gonzales III, to endorse the pending case to his office for administrative adjudication.6 This was despite the fact that the same case against Rolando Mendoza was already "dismissed by the Manila City Prosecutors Office for lack of probable cause and by the [Philippine National Police–National Capital Region] Internal Affairs Service for failure of the complainant to submit evidence and prosecute the case."7

According to the Office of the President, petitioner Gonzales did not state a reason for the endorsement of the case to the Office of the Ombudsman.8 The Office of the President also found that the Office of the Deputy Ombudsman made Atty. Clarence V. Guinto of the Philippine National Police-Criminal Investigation and Detection Group-National Capital Region serve as the nominal complainant in the case against Mendoza.9 Atty. Guinto did not even summon or compel Christian Kalaw, the original complainant in the case against Mendoza, to affirm his complaint-affidavit10 before the Ombudsman or require Kalaw to "submit any position paper as required."11

At one point during the hostage-taking incident, Manila City Vice Mayor Francisco "Isko" Moreno interceded. He was already at the Office of the Ombudsman when he asked Mendoza if there was someone there that he wanted to talk to. Mendoza was very thankful to Vice Mayor Moreno and requested if he could talk to a certain Director Gonzales of the Office of the Ombudsman.

Mendoza spoke to Deputy Ombudsman Gonzales. After some time, Mendoza was heard shouting and uttering invectives: "Putang ina mo, humihingi ka pa ng ₱150,000 para sa kaso ko, kung may mamamatay dito kasalanan mo lahat! (You son of a bitch, you are asking for ₱150,000 for my case, if anyone dies here it’s all your fault!)."12

Moreno overheard Gonzales say, "O wala akong alam diyan (I don’t know anything about that)."13

The Office of the President acted on what it saw as substantial evidence that Deputy Ombudsman Gonzales delayed acting on the motion for reconsideration14 of the late Rolando Mendoza and that Gonzales asked for ₱150,000.00 to decide on the case. This was also the finding of the Incident Investigation and Review Committee15 created after the hostage-taking incident.

The duties of the Ombudsman and Deputy Ombudsman are provided for in Article XI, Section 13 of the 1987 Constitution.16 These include the duty to direct any public official or employee of the government to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.17 Certainly, it would be betrayal of public trust in the highest order when a Deputy Ombudsman himself committed actions that he is constitutionally mandated to curtail.

This case came to this court through a petition for certiorari18 filed by Emilio Gonzales III (docketed as G.R. No. 196231) alleging grave abuse of discretion on the part of the Office of the President for its decision19 dated March 31, 2011. This was consolidated with G.R. No. 196232, a petition for certiorari and prohibition20 filed by Wendell Barreras-Sulit against the Order21 of the Office of the Executive Secretary.

The other case consolidated with the case of Emilio Gonzalez III involves an order issued by the Office of the Executive Secretary to petitioner Special Prosecutor Wendell Barreras-Sulit. The order required her to submit a written explanation why no disciplinary action should be taken against her, based on her role in securing a plea bargaining agreement in favor of Major Carlos P. Garcia.

Major Carlos P. Garcia was accused of embezzling millions of pesos and dollars as well as amassing properties in violation of the Plunder Law. The Committee on Justice of the House of Representatives found that petitioner Barreras-Sulit committed acts that were tantamount to culpable violation of the Constitution and betrayal of public trust. Hence, a case docketed as OP-DC-Case No. 11-B-003 was filed by the Office of the President against petitioner Barreras-Sulit and was set for preliminary investigation.

Both cases were consolidated because they raised the issue of the constitutionality of Section 8, Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act. Petitioners questioned the constitutionality of this provision, which states that the Office of the President may remove the Deputy Ombudsman and Special Prosecutor from office on the grounds of removal of the Ombudsman and after due process.

The initial voting of this court on whether Gonzales could be found liable for betrayal of the public trust was 14-0. All the Justices then agreed that there was no substantial basis to support the finding of the Office of the President. On the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act, the vote was evenly split. Seven voted to declare the provision unconstitutional. The other seven voted to uphold. Thus, in its September 4, 2012 decision,22 this court denied the challenge to the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act and ordered the reinstatement of Gonzales and the continuation of the proceedings against Barreras-Sulit.23 This court then granted Gonzales’ petition for certiorari,24 insofar as it reversed the public respondent Office of the President’s decision in OP Case No. 10-J-460.

The Office of the Solicitor General then filed a motion for partial Reconsideration25 dated October 10, 2012 of the September 4, 2012 decision of this court. As its sole ground for allowance, the motionfor partial reconsideration raised that the Office of the President did not gravely abuse its discretion when it found "petitioner Gonzales guilty of betrayal of public trust and imposed upon him the penalty of dismissal from office."26

In my view, the motion for partial reconsideration raises three issues that require discussion.

The first issue is whether the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act was reopened even if this was not raised in the actual motion for partial reconsideration of the Office of the Solicitor General.

The second issue is whether Section 8, Paragraph (2) of the Ombudsman Act is constitutional.

The third issue is whether the actions of petitioner Emilio Gonzales III constitute betrayal of public trust and warrant his dismissal from his position, assuming that Section 8, Paragraph (2) of the Ombudsman Act is constitutional.

The motion for partial reconsideration reopens the entire case. These cases cannot be fully resolved unless the question of the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act is again decided by this court. The question whether petitioner Gonzales is guilty of betrayal of public trust also involves the matter as to whether that ground exists at all.

This means that we are constrained to address the constitutional issue as to whether it is the Office of the President that can constitutionally exercise disciplinary powers over the Deputy Ombudsman.

This court is a court of general jurisdiction. It has the ability to determine the scope of the issues it can decide on in order to fulfill its constitutional duty to exercise its judicial power. This power must be fully exercised to achieve the ends of justice.

Judicial power includes determining the constitutionality of the actions of a branch of government. In Luz Farms v. Secretary of the Department of Agrarian Reform,27 this court held:

It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself x x x.

However, despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. x x x Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts of these departments, or of any official, betray the people's will as expressed in the Constitution x x x.

Thus, where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of the government had assumed to do, as void. This is the essence of judicial power conferred by the Constitution "(I)n one Supreme Court and in such lower courts as may be established by law" (Art. VIII, Section 1 of the 1935 Constitution; Article X, Section I of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Article VIII, Section 1 of the 1987 Constitution) and which power this Court has exercised in many instances. (Citations omitted)28

The constitutional challenge must be squarely addressed and threshed out in its entirety because the constitutionality of the law itself is the very lis mota of the case. In People v. Vera,29 this court first presented the idea of lis mota:

It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)30

In line with the doctrine of Vera, this court’s disposition of the case depends on a final determination of the constitutionality of Section 8, Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act.

While it appears that the constitutionality of the Ombudsman Act was not raised in the motion for partial reconsideration, no final determination can be made without addressing the constitutional point.

Any determination of petitioner Gonzales’ liability by this court is contingent on the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act. This is the basis of the putative disciplinary authority vested in the Office of the President over the Deputy Ombudsman and the Office of the Special Prosecutor. If this provision is unconstitutional, then no valid action on this case can emanate from the Office of the President.

We cannot be made to issue an incomplete ruling simply because the motion for reconsideration was partial. We are a full court with full powers with a whole duty to determine when the Constitution is violated.

In Juco v. Heirs of Tomas Siy Chung Fu,31 this court elaborated on the effect of a motion for reconsideration:

A motion for reconsideration has the effect of suspending the statutory period after which an order, decision, or judgment, in connection with which said motion was filed, becomes final. In effect, such motion for reconsideration has prevented the decision from attaining finality.32

This case can be adjudicated in its entirety because the September 4, 2012 decision of this court has not yet achieved finality.

When the Judiciary is asked to ascertain constitutional limitations or invalidate the acts of a co-equal body such as the Executive, what it puts forward is the supremacy of the Constitution. Since its inception, the Philippine Constitution has always provided for a structured and evolving system of separation of powers and checks and balances. The landmark case of Angara v. Electoral Commission33 served as the jurisprudential benchmark for this system:

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.34

The principle of checks and balances and the principle of the separation of powers are not limited to the interaction of the powers of the Executive, Legislative, and the Judiciary. The principle of checks and balances, as well as separation of powers, also applies to the interaction of the three branches of government with the other constitutional organs, particularly the Constitutional Commissions as well as the Office of the Ombudsman. Angara itself was an elaborate examination of the relationship of the three branches with the Electoral Commission, which this court in Angara ruled was, indeed, an independent constitutional organ.

The principle of checks and balances allows constitutionally enshrined bodies or organs and governmental departments to correct mistakes and prevent excesses done by other branches. It also ensures a degree of cooperation while being clear as to what acts may constitute undue encroachments upon another branch’s or organ’s constitutional duties.

(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.

In order to determine whether it can pass a constitutional challenge in view of the facts arising from these consolidated cases, we should start first with textual reference. That is, we should check all the relevant and applicable provisions of the Constitution.

There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. (Emphasis supplied)

In relation to this provision, the Ombudsman is among the officials enumerated in Article XI, Section 2 as those who can be removed from office only through impeachment.

The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and 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. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Emphasis supplied)

The phrase "as provided by law" is the apparent basis for the enactment of Section 8, Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act. In my view, this provision cannot be taken in isolation. Any interpretation of this phrase should not deny the "independent" nature of the Office of the Ombudsman as provided in Article XI, Section 5 of the Constitution. The Constitution should be read as a whole document in a manner that will give effect to all its parts.35

I agree with the positions of Justice Brion and Justice Abad in their dissenting opinions on the September 4, 2012 decision that the independence of the Office of the Ombudsman is of such a fundamental and unequivocal nature. This independence is essential to carry out the functions and duties of the Office of the Ombudsman. I agree with their position that since those in the executive branch are also subject to the disciplinary authority of the Office of the Ombudsman, providing the Office of the President with the power to remove would be an impediment to the fundamental independence of the Ombudsman.

We cannot allow a circumvention of the separation of powers by construing Article XI, Section 2 of the Constitution as delegating plenary and unbounded power to Congress. The exclusive power of the Ombudsman to discipline her own ranks is fundamental to the independence of her office.

The Constitution’s intention to make the independence of the Office of the Ombudsman greater than any other office can also be inferred from the authority and the process of appointment of the officers constituting that office. Hence, Article XI, Section 9 of the Constitution provides:

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.36

The President is granted the power to appoint but only from a list of nominees vetted by the Judicial and Bar Council. Furthermore, the President needs to exercise that power to appoint within three months from the vacancy of either the Ombudsman or any of her Deputies.

Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law.37

This is similar to the provisions for Constitutional Commissions. Article IX, Section 4 of the Constitution provides:

Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law.38

It is clear that there is a different treatment of the Deputies of the Ombudsman from all the other staff of the Office of the Ombudsman.

The Ombudsman is assisted by the Deputy Ombudsman. There are several deputies for Luzon, Visayas, Mindanao, and the military. All these deputies take their direction from the Ombudsman. By constitutional fiat, they cannot take direction from any other constitutional officer. It is difficult to imagine how the independence of the Ombudsman can be preserved when the President has concurring powers to remove her deputies.

Furthermore, it is not difficult to imagine that the President and Congress can negate the elaborate process of appointing a Deputy Ombudsman simply by using their alleged power of removal. While this may not have been the situation in this case, the possibility exists especially when we consider that the Ombudsman does have jurisdiction also to investigate both the executive and legislative branches. The real fear of the deputies can hobble the Office of the Ombudsman.

During the deliberations of this case, a question was raised as to whether the President can have the authority to discipline non-impeachable officers and employees of Constitutional Commissions and the Office of the Ombudsman when the law so provides. This court’s construction of constitutional provisions should be framed only by the actual controversies presented by the facts of the case at bar. The issue in this case is only about the power of the President to remove the Deputy Ombudsman and the Special Prosecutor for causes provided by law. It does not involve the power of the President to remove any other civil servant appointed by the Ombudsman.

In its September 4, 2012 decision, this court cited Hon. Hagad v. Hon. Gozodadole39 and Office of the Ombudsman v. Delijero, Jr.40 to show that the Office of the President has concurrent disciplinary jurisdiction with the Office of the Ombudsman. These cases, however, are not applicable. Hon. Hagad involved prosecution and discipline of the Mayor and Vice Mayor as well as a member of the Sangguniang Panlungsod of Mandaue City. The Constitution puts local governments within the general supervision of the President.41 They are, therefore, also within the authority of the Office of the President to discipline.

In Office of the Ombudsman v. Delijero, Jr., there was a law, namely, Republic Act No. 4670, which provided a separate set of procedural requirements for administrative proceedings involving public school teachers. Thus, this court held that it would have been more prudent for the Office of the Ombudsman to refer the case to the Department of Education. Public school teachers do not enjoy the constitutional independence similar to that of the Office of the Ombudsman.

In his concurring opinion on the September 4, 2012 decision, Justice Carpio presents the view that the independence of the Office of the Ombudsman does not mean that it is insulated from all governmental scrutiny. According to Justice Carpio, Congress has the power to legislate the officials that may be subject to dismissal and disciplinary action, if the Constitution allows. He cites the records of the Constitutional Commissions, particularly that of Commissioner Regalado, who sought the amendment to include the sentence, "ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT," under Article XI, Section 2. Thus, Congress has the plenary power to provide for the officials that may be removed and the manner by which they are to be removed as well.

I agree with Justice Carpio that the Office of the Ombudsman is also constitutionally accountable. I cannot agree, however, that this accountability can be extracted by allowing her deputies to be answerable to two principals: the Ombudsman and the President, even if this dual accountability is provided by law.

Reliance on the debates of the framers of the 1987 Constitution is not the only source for determining the meaning of the text of the Constitution.42 Resorting to the debates and proceedings of the constitutional convention shows us the views and standpoints of individual members of the convention.43 It does not show how the sovereign people read the Constitution at the time of ratification. The discussion of those that drafted the present Constitution is advisory.44 The text of the Constitution should be read by one guided by, but not limited to, the debates that happened when it was drafted and ratified. It should also be read in the light of the needs of present times while being sensitive and addressing precedents existing in our jurisprudence.

The mention in the records of the Constitutional Commission of the phrase "as provided by law" cannot serve as the sole yardstick by which a definitive interpretation of the constitutional provision or its effects is to be determined. "As provided by law" with respect to the Deputy Ombudsman may, at best, only provide for the standards under which the Ombudsman may exercise her power of removal. Unless the Constitution does not intend true operational independence, the clause cannot be interpreted to mean that Congress has plenary authority to lodge disciplinary power on any other organ other than the Ombudsman.

I also agree with the concurring opinion of Justice Carpio on the September 4, 2012 decision of this court that there are different degrees of independence among the offices enumerated by the Constitution. Congress is empowered to determine through subsequent legislation the standards and legislative parameters of the independence of certain constitutional offices.

The 1987 Constitution provides two distinct types of independence as defined in its provisions. The first type of independence is constitutionally enshrined. This means that it can neither be subject to any interference by other branches of government nor can Congress pass laws that abridge or impair its fundamental independence. This independence is of such a degree and nature that the very essence of the constitutional body provides for a definitive barrier against legislative or executive intervention. This is the type of independence enjoyed by the Constitutional Commissions,45 the Office of the Ombudsman,46 and – to a certain extent – the Commission on Human Rights.47

The second type of independence refers to the Constitution itself allowing Congress to define the functions that will ensure the independence of specific government offices or agencies. For instance, unlike the provisions with respect to the Ombudsman, the Constitution provides that the National Economic Development Authority48 and the Central Bank49 will be created and further defined by law.

The treatment of the Office of the Special Prosecutor is, however, different. In my view, the Office of the Special Prosecutor may by law be removed by the President. This is what Section 8, Paragraph (2) of the Ombudsman Act provides.

This conclusion can be seen simply by examining the provisions of Article XI of the Constitution. There are two constitutional organs created: the Office of the Ombudsman and the Tanodbayan, which is the current Office of the Special Prosecutor:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law.

Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. (Emphasis provided)

Section 5 of Article XI provides that the composition of the Office of the Ombudsman includes the Office of the Ombudsman, the overall Deputy Ombudsman for Luzon, Visayas, and Mindanao as well as a separate Deputy for the military establishment. Section 6 of Article XI states that the other officials and employees of the Office of the Ombudsman, outside of the Deputies, shall be appointed by the Ombudsman in accordance with the Civil Service Law. Section 7 of Article XI provides that what was then known as the Tanodbayan shall now be known as the Office of the Special Prosecutor. It is allowed to exercise its powers as provided by law except those explicitly provided for in the 1987 Constitution.

Section 7 even distinguishes between all the other officials and employees of the Ombudsman and that of the Office of the Special Prosecutor.

The Office of the Ombudsman’s powers are more proactive than the prosecutorial powers of the Office of the Special Prosecutor. This can be seen in the enumeration of her powers in the Constitution. Thus, in Article XI, Section 13:

Sec.13. The Office of the Ombudsman shall have the following powers, functions, and duties:

By clear constitutional design, the Tanodbayan or the Office of the Special Prosecutor is separate from the Office of the Ombudsman. Section 7 is explicit on this point, in that the Office of the Special Prosecutor is allowed to exercise its powers, except for those conferred on the Office of the Ombudsman. While the Office of the Special Prosecutor is not automatically a part of the Office of the Ombudsman, there is, however, no reason that Congress and the President may, by law and in their political wisdom, attach the Office of the Special Prosecutor with the Office of the Ombudsman. There is also no constitutional prohibition for the Office of the Special Prosecutor to be functionally separate from the Office of the Ombudsman. This is a matter to be addressed by the political departments. This may also be viewed as a check of both Congress and the President on the powers of the Ombudsman.

By clear provision of the Constitution, it is only the Office of the Ombudsman, which includes her Deputies, that is endowed with constitutional independence. The inclusion of the Office of the Special Prosecutor with the Office of the Ombudsman in Section 3 of Republic Act No. 6770 does not ipso facto mean that the Office of the Special Prosecutor must be afforded the same levels of constitutional independence as that of the Ombudsman and the Deputy Ombudsman. The law simply defines how the Office of the Special Prosecutor is attached and, therefore, coordinated with the Office of the Ombudsman.

Thus, the provision of Section 8, Paragraph (2) of Republic Act No. 6770 which provides for the power of the President to remove the Special Prosecutor is valid and constitutional.

This opinion should not be seen as a sweeping dismissal or acquittal of the liability of petitioner Gonzales due to the unconstitutionality of Section 8, Paragraph (2) of the Ombudsman Act as far as the Office of the Deputy Ombudsman is concerned. Petitioner Gonzales must still be held accountable for his actions. His actions as described in the report and in the decision of the Office of the President are troubling. There is need to continue the investigation so that the public may finally find closure concerning these incidents.

Understandably, the Office of the President wanted to act with due and deliberate dispatch on this case based on a provision of law which it interpreted to be valid and constitutional. It acted with the best of motives. But grand intentions cannot replace constitutional design. Even "daang matuwid'' requires that the right course of action must be effectively and efficiently done in the right way.

I vote to declare that Section 8, Paragraph (2) of the Ombudsman Act, insofar as the Deputy Ombudsma is subjected to the disciplinary power of the Office of the President, is unconstitutional. Petitioner Gonzales may, however, still be subject to investigation and discipline by the Ombudsman herself. I also vote that, given the facts, there was substantial evidence of betrayal of public trust on the part of petitioner Gonzales.