Is the Deputy Ombudsman, then, an impeachable officer? Section 2, Article XI of the 1987 Constitution, states that:
Sec. 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.
To determine whether or not the Ombudsman therein mentioned refers to a person or to an office, reference was made by the appellate court to the Records of the Constitutional Commission, as well as to the opinions of leading commentators in constitutional law. Thus:
. . . It appears that the members of the Constitutional Commission have made reference only to the Ombudsman as impeachable, excluding his deputies. The pertinent portions of the record read, to wit:
. . .
MR. REGALADO. Yes, thank you.
On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform his duties because he is something like a guardian of the government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people, “Quis custodiet ipsos custodies,” who will guard the guardians? I understand here that the Ombudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the phrase “have the rank of.” We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission and the Committee.
MR. ROMULO. Yes. If I may just comment: the Ombudsman in this provision is a rank in itself really. That is how we look at it. But for purposes of government classification and salary, we thought we have to give him a recognizable or an existing rank as a point of reference more than anything else.
MR. REGALADO. Yes, but my concern is whether or not he is removable only by impeachment, because Section 2 enumerates the impeachable officials, and it does not mention public officers with the rank of constitutional commissioners.
MR. ROMULO. But we do mention them as the Ombudsman is mentioned in that enumeration. We used the word “Ombudsman” because we would like it to be his title; we do not want him called “Chairman” or “Justice.” We want him called Ombudsman.
. . .
(Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274)
MR. DAVIDE. I will not insist.
On lines 13 and 14, I move for the deletion of the words “and the Ombudsman.” The Ombudsman should not be placed on the level of the President and the Vice-President, the members of the judiciary and the members of the Constitutional Commissions in the matter of removal from office.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. We regret we cannot accept the amendment because we feel that the Ombudsman is at least on the same level as the Constitutional Commissioners and this is one way of insulating it from politics.
MR. DAVIDE. Madam President, to make the members of the Ombudsman removable only by impeachment would be to enshrine and install an officer whose functions are not as delicate as the others whom we wanted to protect from immediate removal by way of an impeachment.
MR. MONSOD. We feel that an officer in the Ombudsman, if he does his work well, could be stepping on a lot of toes. We would really prefer to keep him there but we would like the body to vote on it, although I would like to ask if we still have a quorum, Madam President.
THE PRESIDENT. Do we have a quorum? There are members who are in the lounge.
The Secretary-General and the pages conduct an actual count of the Commissioners present.
THE PRESIDENT. We have a quorum.
MR. MONSOD. May we restate the proposed amendment for the benefit of those who were not here a few minutes ago.
MR. DE LOS REYES. Madam President, parliamentary inquiry. I thought that amendment was already covered in the amendment of Commissioner Rodrigo. One of those amendments proposed by Commissioner Rodrigo was to delete the word “Ombudsman” and, therefore, we have already voted on it.
MR. DAVIDE. Madam President, may I comment on that.
THE PRESIDENT. Yes, the Gentleman may proceed.
MR. DAVIDE. The proposed amendment of Commissioner Rodrigo was the total deletion of the Office of the Ombudsman and all sections relating to it. It was rejected by the body and, therefore, we can have individual amendments now on the particular sections.
THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the Ombudsman among those officials who have to be removed from office only on impeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.
. . .
(Ibid., p. 305, emphasis supplied)
Moreover, this Court has likewise taken into account the commentaries of the leading legal luminaries on the Constitution as to their opinion on whether or not the Deputy Ombudsman is impeachable. All of them agree in unison that the impeachable officers enumerated in Section 2, Article XI of the 1986 Constitution is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable. Foremost among them is the erudite Justice Isagani A. Cruz (ret.), who opined:
The impeachable officers are the President of the Philippines, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman. (see Art. XI, Sec. 2) The list is exclusive and may not be increased or reduced by legislative enactment. The power to impeach is essentially a non-legislative prerogative and can be exercised by the Congress only within the limits of the authority conferred upon it by the Constitution. This authority may not be expanded by the grantee itself even if motivated by the desire to strengthen the security of tenure of other officials of the government.
It is now provided by decree (see P.D. No. 1606) that justices of the Sandiganbayan may be removed only through process of impeachment, the purpose evidently being to withdraw them from the removal power of the Supreme Court. This prohibition is of dubious constitutionality. In the first place, the list of impeachable officers is covered by the maxim “expressio unius est exclusio alterius.” Secondly, Article VIII, Section 11, of the Constitution states that all judges of inferior courts – and this would include the Sandiganbayan – are under the disciplinary power of the Supreme Court and may be removed by it. This view is bolstered by the last sentence of Article XI, Section 2, which runs in full as follows:
Sec. 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. (Cruz, Isagani A., Philippine Political Law, 1996 ed., pp. 333-334)
Equally worth noting is the opinion of no less than Rev. Fr. Joaquin G. Bernas, S.J., himself who was a member of the Constitutional Commission which drafted the 1987 Constitution, (who) asserted:
Q. Is the list of officers subject to impeachment found in Section 2 exclusive?
A. As presently worded, yes.
(Bernas, Joaquin G., S.J., The 1987 Philippine Constitution, A Reviewer-Primer, 1997 ed., p. 401)
Last but certainly not the least is the equally erudite Representative Antonio B. Nachura himself, who, as a professor of law, commented that the enumeration of impeachable officers in Section 2, Article XI of the 1987 Constitution, is exclusive. (Nachura, Antonio B., Outline/Reviewer in Political Law, 1998 ed., p. 192)
From the foregoing, it is immediately apparent that, as enumerated in Sec. 2 of Article XI of the 1987 Constitution, only the following are impeachable officers: the President, the Vice President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman.
How then to explain our earlier pronouncement in Cuenco v. Fernan, as later cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella? By way of reiteration, said Resolution reads in part:
. . . To grant a complaint for disbarment of a Member of the Court during the Member’s incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI  of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI  in relation to Article XI ), . . . all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied)
In cross-referencing Sec. 2, which is an enumeration of impeachable officers, with Sec. 8, which lists the qualifications of the Ombudsman and his deputies, the intention was to indicate, by way of obiter dictum, that as with members of this Court, the officers so enumerated were also constitutionally required to be members of the bar.
A dictum is an opinion that does not embody the resolution or determination of the court, and made without argument, or full consideration of the point. Mere dicta are not binding under the doctrine of stare decisis.
The legal maxim “stare decisis et non quieta movere” (follow past precedents and do not disturb what has been settled) states that where the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.
The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, does Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella, which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits.
Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented.
As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner.
The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts.
Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the former’s retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 of the Anti-Graft and Corrupt Practices Act.