This document seeks to answer the following questions: 1. Whether there is legal basis for the filing of an impeachment complaint against Ombudsman Merceditas Gutierrez; 2. Whether the same allegations that were filed during 14th Congress can be used as the basis of a new complaint, and; 3. Whether double jeopardy is applicable.

Impeachment is a remedy sanctioned by the Philippine Constitution for removing the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and for purposes of this discussion, the Ombudsman1. As the protector of the people2, it is the sacred duty of the Ombudsman, to take lead in the investigation and prosecution of erring government officials who have committed graft and corruption. As the vanguard of the trust and faith of the people, the Office of the Ombudsman is expected to take up the cudgels for the citizenry and protect the coffers of the government from the rapacity and abuses committed by government officials or those officers upon whom the welfare and trust of the people have been reposed.

When the Ombudsman herself has lost the trust and the confidence of the people whom she is expected to serve, as a result of her failure to perform her mandated functions, the remedy of the people is to remove her from office through the impeachment process.

Although the process of impeachment has the elements of a criminal process, it is primarily a political process designed to deal with the misconduct by high public officers. The political aspect of this process stems from the fact that the participants (i.e. senator judges, prosecutors) are not ordinary citizens acting as judges but rather are elected officials who serve by virtue of their positions and not because they have been selected by the courts to serve in judgment.

It can also be argued that the process of impeachment is a method of removing a person from office in order to prevent a greater danger to the people. In a way, what is sought to be achieved in the impeachment exercise is to protect also the office of the person to be impeached in order to avoid eroding or destroying the institution or office being occupied: remedial measure to restore the faith of the people but without the stigma of a criminal prosecution upon the person to be impeached.  Thus, the penalty imposed is only removal from office and disqualification from holding public office. Since public office is a public trust and a privileged granted through the beneficence, such a privilege can also be withdrawn by the people themselves through the impeachment process.

The Constitution provides the grounds for impeachment namely culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. There are two steps in an impeachment case against the Ombudsman. First, the House of Representatives has the exclusive power to initiate the impeachment case. Second, the Senate will try and decide the case.

On March 2, 2009 (during the 14th Congress) an impeachment case was filed against Ombudsman Merceditas Gutierrez. There were two grounds in the impeachment case namely: 1.) Betrayal of Public Trust and 2.) Culpable Violation of the Constitution. “Betrayal of Public Trust” is a new ground introduced by the 1987 Constitution.

It covers any violation of the oath of office involving loss of popular support even if the violation may not amount to a punishable offense3. On the other hand, “Culpable Violation of the Constitution” is the deliberate and wrongful breach of the Constitution. However, Violation of the Constitution made unintentionally, in good faith, and mere mistakes in the proper construction of the Constitution do not constitute an impeachable offense.

The specific factual allegations that constitutes the grounds for impeachment case against Ombudsman Gutierrez involve the following—

I. For Betrayal of Public Trust

a.   Disregarding the SC findings and directive on the Mega Pacific graft and corruption case4. SC declared null and void the 1.3 Billion Equipment purchase contract entered by COMELEC thru COMELEC Chair Abalos.  The Supreme Court said that there were “clear violations of law and jurisprudence” and “reckless disregard of COMELEC’s bidding rules and procedure” and ordered the Ombudsman to investigate the criminal liability of the public officials and private individuals involved in the nullified and voided contract.

The irregularities discovered by the Supreme Court were affirmed by the Senate Committee on Accountability of Public Officers and Investigations (Senate Blue Ribbon).  However, despite the ruling of the Supreme Court and the affirmation of the irregularities by the Senate Blue Ribbon Committee, respondent approved the 27 September 2006 Resolution finding no probable cause to hold the COMELEC Commissioners and other officials criminally liable nor did she find substantial evidence to even hold them administratively liable overturning its own earlier 28 June 2006 Resolution.

b.   Inaction in the collusion scheme entered into by bidders, government officials and public figures on the World Bank financed road projects.  In May 2006, World Bank with an oral briefing on the interim findings of an administrative finding inquiry that the World Bank had conducted into allegations of fraud and corruption in the first phase of the Philippines National Roads Improvement and Management Project (NRIMP-1), a $150 million project, approved by the World Bank Board in February 2000. In November 2007,

A Referral Report was submitted to the Ombudsman containing the summary of the investigation’s findings. The Referral Report identified private contractors, DPWH officials and Filipino public figures who have allegedly participated in the collusive scheme on the World Bank-financed road projects.  No action was taken by the Ombudsman on either the Oral Briefing or the Referral Report.

c.   Late filing of criminal cases and filing of defective Informations against former Department of Justice Secretary Hernando “Nani” Perez for extortion activities against Cong. Mark Jimenez that caused the dismissal of such cases.  In January 2007, the Ombudsman issued a Resolution ordering the filing of graft and extortion charges against former Secretary of Justice Hernando “Nani” Perez based on a complaint filed by former Manila Representative Mark Jimenez for allegedly extorting US $2 million from him. After more than a year, or on 18 April 2008, the Ombudsman filed before the Sandiganbayan several cases against Perez, including an information for violation of Section 3(b) of Republic Act 3019 or the “Anti-Graft and Corrupt Practices Act,” and Robbery.

However, Ombudsman Gutierrez filed defective and/or late informations (the Information do not constitute the offense charged) which caused the eventual dismissal of the case5.  This shows gross ignorance of the law and manifest incompetence as Ombudsman.

d.   Gross inexcusable inaction on the graft and corruption cases on the more than 1 Billion pesos Fertilizer Fund Scam to perpetrate massive fraud in the 2004 Presidential elections involving former Department of Agriculture Secretary Jocjoc Bolante. Graft and corruption cases were filed separately in 2004 by Atty. Frank Chavez and journalist Marlene Esperat.

In the midst of Esperat’s exposé of the said fertilizer scam, she was murdered on 24 March 2005 in front of her 10-year old son, James, while they were having lunch.  Reports say that Omnbudsperson Gutierrez just recently resolved these complaints and ordered the filing of graft and corruption cases against Bolante.  We still have to see those orders but even so, this she did after almost six years of inaction despite strong evidence to establish probable cause.

e.   Failure to promptly resolve the graft and corruption case involving the “Euro-Generals” despite overwhelming evidence, including an admission from Gen. Eliseo dela Paz, constitutes grave dereliction of her Constitutional and statutory duties and unlawful and culpable neglect.  PNP Dir. De la Paz was stopped by customs inspectors at Moscow International Airport from boarding a plane after finding 105,000 euros (P6.93M) in his carry-on baggage, which exceeded the 3,000-euro limit for departing passengers.

During the Senate hearing on 15 November 2008, De la Paz himself admitted that he was the  one who authorized the release of the amount from the PNP intelligence fund. Airport Customs Collector Teresita Roque expressly admitted that the PNP delegation’s hand carried bags were not checked when they left Manila International Airport for Russia. They also did not declare any excess currency. De la Paz openly admitted during the Senate hearing on 15 November 2008 that he knows that there is a requirement to declare the excess amount of money.  Up to this date, no resolution has been made by the Ombudsman despite the evidence and the public admissions.

f.   Manifest bias in issuing arbitrary dismissal and suspension orders against Iloilo Governor Tupas on 12 January 2007, a day before the start of the May 2007 election period and when Ombudsman Gutierrez issued its 28 October 2008 Order,6 arbitrarily and illegally imposing a six-month preventive suspension against Gov. Garcia for administrative charges supposedly committed during his previous term.

The suspension of Governor Garcia is contrary to the Supreme Court’s rulings in the cases of Aguinaldo vs. Santos7 and Salalima vs. Guingona8 where it upheld the principle that a public official cannot be removed for administrative misconduct committed during a previous term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore.

g.   Culpable Violation of the Constitution.  The delays, inaction, and gross negligence as well as denying the parties the right to be heard committed by the Ombudsman violates the Constitutional guarantees on the right to due process, the Constitutional mandate on the speedy disposition of cases, and the mandate of the Ombudsman to be the protector of the people.

There is no legal substantive and procedural constraint in filing another impeachment case against Ombudsman Gutierrez in the Fifteenth Congress which is scheduled to start its session on July 26, 2010.  Congress need not wait since what was provided in the Constitution was that “No impeachment proceedings shall be initiated against the same official more than once within a period of one year”9.

The said impeachment case was dismissed by the Committee on Justice because it was found to be insufficient in substance. Despite the dismissal in the previous Congress, the impeachment case can be filed again because of public policy on public accountability as highlighted by the Constitutional provision– “Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.” 10 Thus, the people can at all times demand public accountability from all public officers especially those with special Constitutional duty like the Ombudsman.

Procedurally, the allegations in the previous impeachment case can still be used in case a new case will be filed because the facts were never considered before. “Sufficiency in substance” refers to the recital of facts constituting the offense charged and determinative of the jurisdiction of the committee11. The decision to dismiss the previous impeachment case was due to the insufficiency in substance which can be remedied with more facts supporting the allegations.

Although the Rules on Criminal of the Rules of Court procedure generally apply, double jeopardy is not applicable because the nature of an Impeachment case is not criminal but political. There is no re-opening of danger on the life or liberty of the person charged with an impeachable offense. The penalty is limited to removal from office and disqualification to hold office.

Res judicata has four elements which must be present in order to bar the reopening of a previous case: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment on the merits; and (4) there must be as between the first and second action, identity of parties, subject matter, and causes of action12. Res judicata does not attach in this case because there was no judgment on the merits from the previous impeachment case. It was dismissed due to insufficiency of substance which is a mere technicality. Simply stated, the case against the Ombudsman did not prosper not because of lack of evidence but because of the refusal of congress to prosecute or even entertain the case.

Substantively, the same allegations in the impeachment complaint filed in 14th Congress can be used because they were never proven or disproven in a hearing on the merits. The only prohibition stated by the Constitution with regard to impeachment is the frequency of initiating it which is limited to once a year.

Initiating an impeachment case, according to the Supreme Court, is the filing of an impeachment complaint and its referral to the Committee on Justice. Except the one year ban, there is no other prohibition stated in the Constitution. Since the Constitution is silent then it can be construed in favor of greater accountability of impeachable officials. The framers of the Constitution did not intend to put stringent rules similar to a criminal prosecution. Moreover, the Rules of Court will be liberally construed and cannot be invoked when it will impede accountability from erring public officials.

Public office is a public trust and a fitting Ombudsman has Constitutional duties which she must fulfill properly and with utmost zeal. Impeachment is the only legal process provided by the Constitution in order to replace an erring and ineffective Ombudsman. The Ombudsman cannot seek solace on mere technicalities nor can she avoid confronting all the issues simply because of procedural lapses.

The Constitution specifically recognizes the sovereign right and the will of the people to remove from office those who have been found to have failed to live up to the faith and trust reposed upon them. This is precisely why impeachment has been enshrined in the Constitution itself as the sword to be wielded in order to protect the supremacy of the people over and above anyone who claims otherwise.  Salus populi est suprema lex.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.

1 Section 2, Article 11, Philippine Constitution. 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.

2 Section 12 Article 11, Philippine Constitution.  The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

3 De Leon, Philippine Constitutional Law, 1999, Rex Printing Company, Inc., p757

4 Info Technology Foundation vs COMELEC, G.R. No. 159139, January 13, 2004.

5 Ombudsman Gutierrez’s inordinate filing of the complaint has caused the dismissal of another case involving former Secretary of Justice Perez, which was expressly stated in Sandiganbayan Resolution dated 20 November 2008; People of the Philippines vs. Hernando Perez, Crim. Case No. SB-08-CRM-0266.

6 In Administrative Case No. OMB-L-A-08-0039-A.

7 G.R. No. 94115, 21 August 1992.

8 G.R. Nos. 117589-92, 22 May 1996.

9 Section 3, paragraph 5, Article 11, Philippine Constitution.

10 Section 1, Article 11 of the 1987 Constitution.

11 House Rules and Procedures in Impeachment Proceedings, adopted August 1, 2005.

12 Republic of the Philippines vs Yu (G.R. No. 157557, March 10, 2006)