Power of the Ombudsman Includes The Power To Preventively Suspend An Official Subject To Its Administrative Investigation

The creation of the Office of the Ombudsman is a unique feature of the 1987 Constitution.[17]  The Ombudsman and his deputies, as protectors of the people, are mandated to act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.[18]  Foremost among its powers is the authority to investigate and prosecute cases involving public officers and employees, thus:

 

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

(1)        Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed into law on November 17, 1989 and provided for the structural and functional organization of the Office of the Ombudsman.  RA 6770 mandated the Ombudsman and his deputies not only to act promptly on complaints but also to enforce the administrative, civil and criminal liability of government officers and employees in every case where the evidence warrants to promote efficient service by the Government to the people.[19]

The authority of the Ombudsman to conduct administrative investigations as in the present case is settled.[20]  Section 19 of RA 6770 provides:

SEC. 19. Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

(1)               Are contrary to law or regulation;

(2)               Are unreasonable, unfair, oppressive or discriminatory;

(3)               Are inconsistent with the general course of an agency’s functions, though in accordance with law;

(4)               Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5)               Are in the exercise of discretionary powers but for an improper purpose; or

(6)               Are otherwise irregular, immoral or devoid of justification.

The point of contention is the binding power of any decision or order that emanates from the Office of the Ombudsman after it has conducted its investigation.  Under Section 13(3) of Article XI of the 1987 Constitution, it is provided: 

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

(3)        Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis supplied)

Petitioner insists that the word “recommend” be given its literal meaning; that is, that the Ombudsman’s action is only advisory in nature rather than one having any binding effect, citing Tapiador v. Office of the Ombudsman,[21] thus:

… Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID.  Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only “recommend” the removal of the public official or employee found to be at fault, to the public official concerned.[22]

For their part, the Solicitor General and the Office of the Ombudsman argue that the word “recommend must be taken in conjunction with the phrase “and ensure compliance therewith.  The proper interpretation of the Court’s statement in Tapiador should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency concerned to implement the penalty imposed.  In other words, it merely concerns theprocedural aspect of the Ombudsman’s functions and not its jurisdiction.

We agree with the ratiocination of public respondents.  Several reasons militate against a literal interpretation of the subject constitutional provision.  Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case.  The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case.  Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination.

The provisions of RA 6770 support public respondents’ theory.  Section 15 is substantially the same as Section 13, Article XI of the Constitution which provides for the powers, functions and duties of the Ombudsman.  We draw attention to subparagraph 3, to wit:

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:…

(3)        Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: ProvidedThat the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis supplied)

We note that the proviso above qualifies the “order” “to remove, suspend, demote, fine, censure, or prosecute” an officer or employee – akin to the questioned issuances in the case at bar.  That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsman’s “recommendation” is not merely advisory in nature but is actually mandatory within the bounds of law.  This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned.  It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged.[23]  By stating therefore that the Ombudsman “recommends” the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer, which in this case would be the head of the BID.

It is likewise apparent that under RA 6770, the lawmakers intended to provide the Office of the Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate as protector of the people against inept and corrupt government officers and employees.  The Office was granted the power to punish for contempt in accordance with the Rules of Court.[24]  It was given disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies (with the exception only of impeachable officers, members of Congress and the Judiciary).[25]  Also, it can preventively suspend any officer under its authority pending an investigation when the case so warrants.[26]

The foregoing interpretation is consistent with the wisdom and spirit behind the creation of the Office of the Ombudsman.  The records of the deliberations of the Constitutional Commission[27] reveal the following:

MR. MONSOD:

Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee.  What we wanted to avoid is the situation where it deteriorates into a prosecution arm.  We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen.

However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution.

MR. RODRIGO:

Madam President, what I am worried about is if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them.

MR. MONSOD:

I agree with the Commissioner.

MR. RODRIGO:

Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature?[28]

MR. MONSOD:

Yes, because we want to avoid what happened in 1973.  I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law – the last one, P.D. No. 1630—did not follow the main thrust; instead it created the Tanodbayan, …

MR. MONSOD: (reacting to statements of Commissioner Blas Ople):

May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position, The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President.  On one hand, we are told he has no teeth and he lacks other things.  On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President.

With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo.  We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective.  This is not foreclosed.

So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. (Emphasis supplied)[29]

It is thus clear that the framers of our Constitution intended to create a stronger and more effective Ombudsman, independent and beyond the reach of political influences and vested with powers that are not merely persuasive in character.  The Constitutional Commission left to Congress to empower the Ombudsman with prosecutorial functions which it did when RA 6770 was enacted.  In the case of Uy v. Sandiganbayan,[30] it was held:

Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people’s complaints against corrupt and abusive government personnel.  The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees.  The legislature has vested him with broad powers to enable him to implement his own actions. …[31]

http://sc.judiciary.gov.ph/jurisprudence/2005/jul2005/161629.htm

Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution.  Under Article XI, Section 13[1], the Ombudsman has the power to:

“investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative investigations.  Thus, Section 19 of said law provides:

“SEC. 19.  Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency’s functions, though in accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.”

Section 21 of R.A. 6770 names the officials subject to the Ombudsman’s disciplinary authority:

“SEC. 21.  Officials Subject To Disciplinary Authority; Exceptions. – The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.”(Emphasis supplied.)

Petitioner is an elective local official accused of grave misconduct and dishonesty.[10] That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission, is different from the question of whether or not petitioner, after investigation, may be held administratively liable.  This distinction ought here to be kept in mind, even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law.  Under Section 24 of R.A. 6770 –

“SEC. 24.  Preventive Suspension. – The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.” (Underscoring supplied.)

We have previously interpreted the phrase “under his authority” to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed,[11] excepting of course those removable by impeachment, members of Congress and the Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman.  This is the clear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence witnesses[12] or to tamper with records that might be vital to the prosecution of the case against him.[13] In our view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other factors, the evidence of guilt is strong.  The period for which an official may be preventively suspended must not exceed six months.  In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law.

“SEC. 24.  Preventive Suspension. –

x x x

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.” (Underscoring supplied.)

The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman.[14] The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by law.[15] But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition.  These equitable remedies under Rule 65 of the Rules of Court precisely exist to provide prompt relief where an “officer exercising judicial or quasi-judicial functions has acted…with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.” (See Rule 65, Sec. 1).

http://sc.judiciary.gov.ph/jurisprudence/1999/sept99/139043.htm

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About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Administrative Investigation, Anti Graft and Corruption, Criminal Law, Ombudsman, Preventive Suspension and tagged , , , . Bookmark the permalink.

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