Emilio A. Gonzales III vs Office of the President of the Philippines et al. G.R. No. 196231. September 4, 2012

Emilio A. Gonzales III vs Office of the President of the Philippines et al. G.R. No. 196231. September 4, 2012

https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/55179

Perlas-Bernabe

These two petitions have been consolidated not because they stem from
the same factual milieu but because they raise a common thread of issues
 relating to the President's exercise of the power to remove from office
 herein petitioners who claim the protective cloak of independence of
the constitutionally-created office to which they belong — the Office of
 the Ombudsman.

In the morning of August 23, 2010, news media scampered for a
minute-by-minute coverage of a hostage drama that had slowly unfolded
right at the very heart of the City of Manila. While initial news
accounts were fragmented it was not difficult to piece together the
story on the hostage-taker, Police Senior Inspector Rolando Mendoza. He
was a disgruntled former police officer attempting to secure his
reinstatement in the police force and to restore the benefits of a
life-long, and erstwhile bemedaled, service. The following day,
broadsheets and tabloids were replete with stories not just of the
deceased hostage-taker but also of the hostage victims, eight of whom
died during the bungled police operation to rescue the hapless
innocents. Their tragic deaths triggered word wars of foreign relation
proportions. One newspaper headline ran the story in detail, as follows:

MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m.
Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police force.
The hostage drama dragged on even after the driver of the bus managed to escape and told police that all the remaining passengers had been killed.
Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead hostages handcuffed to the door made it difficult for them. Police said they fired at the wheels of the bus to immobilize it.
Police used hammers to smash windows, door and windshield but were met with intermittent fire from the hostage taker.
Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive. When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza was killed by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders scampering for safety.
It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of the hostages during the drama that began at 10 a.m. and played out live on national television.
Live television footage showed Mendoza asking for food for those remaining in the bus, which was delivered, and fuel to keep the air-conditioning going.
The disgruntled former police officer was reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying “big deal will start after 3 p.m. today.” Another sign stuck to another window said “3 p.m. today deadlock.”
Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: “Big mistake to correct a big wrong decision.” A larger piece of paper on the front windshield was headed, “Release final decision,” apparently referring to the case that led to his dismissal from the police force.

## Issues

In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:
(A) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.
(B) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
(C) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR RECONSIDERATION.
(D) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S CASE.
(E) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.
(F) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT PETITIONER DEMANDED A BRIBE FROM MENDOZA.
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question –
AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE?

The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prosecutor is not exclusive.

* Unquestionably, the Ombudsman is possessed of jurisdiction to discipline

his own people and mete out administrative sanctions upon them,
including the extreme penalty of dismissal from the service. However, it
 is equally without question that the President has concurrent authority
 with respect to removal from office of the Deputy Ombudsman and Special
 Prosecutor, albeit under specified conditions. Considering the
principles attending concurrence of jurisdiction where the Office of the
 President was the first to initiate a case against petitioner Gonzales,
 prudence should have prompted the Ombudsman to desist from proceeding
separately against petitioner through its Internal Affairs Board, and to
 defer instead to the President's assumption of authority, especially
when the administrative charge involved "demanding and soliciting a sum
of money" which constitutes either *graft and corruption or bribery*, both of which are grounds reserved for the President's exercise of his authority to remove a Deputy Ombudsman
By granting express statutory power to the President to remove a Deputy Ombudsman and a Special Prosecutor, Congress merely filled an obvious gap in the law.

* That the Deputies of the Ombudsman were intentionally excluded from the enumeration of impeachable officials is clear from the following deliberations of the Constitutional Commission, thus:
* 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. 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.

The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is Implied from his Power to Appoint.

* The Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance to higher authorities. This deputy will, of course work in close cooperation with the Minister of National Defense because of the necessity to maintain the integrity of the chain of command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may not have to fall back on their own informal devices to obtain redress for their grievances.

Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the Independence of the Office of the Ombudsman.

* Reiterating the grounds for impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same grounds that the Ombudsman may be removed through impeachment, namely, “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise the constitutional independence of the Office of the Ombudsman.

Petitioner Gonzales may not be removed from office where the questioned acts, falling short of constitutional standards, do not constitute betrayal of public trust.

* It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his documentary evidence, which opportunity respondent actually availed of. In the second instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express election of a formal investigation.

* The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system failure of government response. It cannot be solely attributed then to what petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of the case, or to his error of judgment in the disposition thereof.
* Accordingly, the OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust. Hence, the President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust.

The Office of the President is vested with statutory authority to proceed administratively against petitioner Barreras-Sulit to determine the existence of any of the grounds for her removal from office as provided for under the Constitution and the Ombudsman Act.

* 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. Consequently, the disciplining authority's finding of ineptitude, neglect or willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an agreement which the government finds “grossly disadvantageous,” could result in administrative liability, notwithstanding court approval of the plea bargaining agreement entered into.

While the Court voted unanimously to reverse the decision of the OP removing petitioner Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of the Internal Rules of the Court.

## Decisions

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of backwages corresponding to the period of suspension effective immediately, even as the Office of the Ombudsman is directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.

Sereno, C.J., Peralta, Del Castillo, Villarama, Jr., Mendoza, and Reyes, JJ., concur.
Carpio, J., see concurring opinion.
Velasco, Jr., Leonardo-De Castro, and Perez, JJ., joins the dissent of J. Brion.
Brion, J., see my dissent.
Bersamin, J., join the dissent of J. Brion and J. Abad.
Abad, J., see my dissenting opinion.