Saturday, July 1, 2017

SC urged to declare all top positions at Office of the Ombudsman vacant

Sunday| July 02, 2017

All top positions at the Office of the Ombudsman must be declared vacant, on the basis that the officials holding the posts, including Ombudsman Conchita Carpio Morales, have overstayed their terms, a lawyer said in a plea before the Supreme Court (SC).

Petitioner Atty. Rey Nathaniel Ifurung urged the high court to declare unconstitutional Section 8 (3) of Republic Act (RA) No. 6770, also known as the Ombudsman Act of 1989, for being contrary to Section 11 in relation to Sections 8 and 10, Article XI of the 1987 Constitution.

The assailed provision in the Ombudsman Act provides that a newly appointed Ombudsman, who replaces a predecessor who fails to complete his or her full seven-year term due to death, resignation, removal or permanent disability, must serve a full term. While the invoked Section 11, Article XI of the Constitution states "[t]he Ombudsman and his Deputies shall serve for a term of seven years without reappointment."

Ifurung argued the framers of the 1987 Constitution had the "clear intent" of applying the status and limitations they set on the three other constitutional commissions namely, Civil Service Commission (CSC), Commission on Elections (Comelec), and Commission on Audit (CoA) on the Office of the Ombudsman.

The Constitution specifically provides that appointment to any vacancy at the CSC, Comelec, and CoA "shall be only for the unexpired portion of the term of the predecessor."

Ifurung asserted that the Ombudsman and his or her deputies, if appointed to fill a vacancy under the above-stated circumstance, should only serve the unexpired terms.

"[T]he legislature went beyond the parameters laid down by Section 11 in relation to Sections 8 and 10 of Article XI of the 1987 Philippine Constitution when it crafted Section 8 (3) of RA No. 6770," the petition stated.

"[I]n all the other constitutionally created offices and positions, the successor to the office, in the event that a vacancy occurs due to reasons other than the expiration of the term of office, shall serve only the unexpired term of the predecessor."

Ifurung also cited the case of Thelma P. Gaminde vs. Commission on Audit, et al., where "this Honorable Court en banc determined that the proper starting point of the terms of office of the first appointees to the constitutional commissions is uniformly set on 02 February 1987."

"The seven year term provided for by Section 11 in relation to Sections 8 and 10 of Article XI of the 1987 Philippine Constitution with the first term ending on 02 February 1987 and starting every seven years thereafter has not been complied with since the Ombudsman Conrado M. Vasquez, the first Ombudsman who was appointed in May 1988," the petition read.

In Carpio-Morales' case, Ifurung argued that her term as replacement of resigned Ombudsman Merceditas Gutierrez should have ended on February 1, 2015.

Gutierrez assumed her post on February 2, 2008 and resigned on May 6, 2011, after only a little over three years in office. Carpio-Morales was appointed to fill the vacancy on July 25, 2011 and should have remained in office only for four years, according to Ifurung.

"As it now stands, respondent Carpio-Morales has been holding the position in a de facto capacity for more than two years since 02 February up to the present. The same is also true with the Deputies Ombudsmen.

"The recurrence of this cycle of non-compliance and non-observance of the intent of the framers and the explicit provision of the 1987 Philippine Constitution is an outright affront to the fundamental law of the land and, if remains unchecked, will create a cycle of non-compliance and non-observation of the Constitution," the petition read.

Ifurung called on the high court to "rectify a recurring constitutional violation," stressing "[t]here is no reason why the same rule as to the unexpired term shall not apply to the Ombudsman… [t]he Ombudsman cannot be an exception to the rule set by the 1987 Constitution."



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