Illegal tenure of current Ombudsman

Last year, In a communication from the chief of staff of Sen. Chiz Escudero, the office of the senator informed me that if and when the senator and his law group would file a petition before the Supreme Court questioning the term/tenure of the present Ombudsman, Merceditas Gutierrez, they would get in touch with me to pursue my previous letter to the senator expressing my willingness to join them as a co-petitioner.

So far, I have not heard any follow-up action thereon from the office of the senator. They seemed to have abandoned the idea. I would not be surprised, considering that the current Supreme Court (aka, Arroyo Court) may look with disfavor at the petition, if one is filed, for it would indirectly weaken the legal and political protections of the ex Pres. Gloria Arroyo, who is expected to face multifarious suits in due time for the crimes and anomalies of her 9-year old expired regime.

Today I read a letter to the editor from Atty. Alan Paguia, Ateneo law professor and former counsel for ousted Pres. Joseph Estrada on the same issue.


May I reproduce below the salient parts of his letter to the editor, thus:


HAS the term of office of current Ombudsman Merceditas Gutierrez expired under the Constitution? Yes, for the following reasons:

1. The Constitution is clear. It materially provides: “The Ombudsman and his Deputies shall serve for a term of seven years without reappointment…” (Sec. 11, Article XI) “All vacancies shall be filled within three months after they occur.” (Sec. 9, Article XI)

2. According to jurisprudence, where the law is clear, there is no room for interpretation. We must apply the law not as we think it ought to be but as we find it, and without regard to consequences. (Velasco v. Lopez, 1 Phil 720) According to the same case, void means “no legal existence.”

3. In the case of Ombudsman Aniano A. Desierto, his term of seven years began when former President Fidel Ramos appointed him effective Aug. 4, 1995, and it expired at midnight of Aug. 3, 2002. He continued to serve in a holdover capacity until Oct. 10, 2002, when his successor, Ombudsman Simeon Marcelo, was appointed by Gloria Macapagal-Arroyo.

4. Ombudsman Marcelo’s seven-year term thus began on Oct. 10, 2002 and expired at midnight of Oct. 9, 2009. However, his tenure in office ended on Dec. 1, 2005 when he resigned, thereby leaving his term of office a balance of about three years and 10 months. He was succeeded by Gutierrez.

5. Gutierrez’s appointment was, therefore, a mere continuation of Marcelo’s seven-year term. Hence, her term expired at midnight of Oct. 9, 2009. While Ms Arroyo had three months within which to fill up the vacancy, she did not comply with the constitutional mandate. That is the problem.

6. Can it be properly said that Gutierrez enjoys a continuing appointment beyond the three-month period? The answer is “No.” After the expiration of the constitutional term, the only way the incumbent can continue to validly serve is to be re-appointed to the office. However, this cannot happen. The Constitution expressly provides: “The Ombudsman and his Deputies shall serve for a term of seven years without reappointment…”

7. Under the law, a substantial distinction is made between “term” and “tenure.” The first is fixed by law; the second is not. Tenure refers to the actual time an officer holds office. It may be less than the term or up to the expiration of the term. In other words, tenure depends, more or less, on the will of the officer. Thus, while term is attached to the office, tenure is attached to the officer.

8. The Constitution fixes the term of office of the Ombudsman to a period of seven successive years. Therefore, when Gutierrez succeeded Marcelo, her tenure was limited by Marcelo’s constitutional term.

9. Consequently, after midnight of Oct. 9, 2009, Ombudsman Gutierrez completely lost jurisdiction to perform the duties of the office. From that precise moment, any performance of duty on her part is void ab initio since the act would have been performed without jurisdiction.

10. Dura lex sed lex. The law may be harsh (to some), but that is the law.


Atty. Paguia may be reached thru alanpaguia@yahoo.com

See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20100801-284409/Merceditas-Gutierrez-not-the-legitimate-Ombudsman