Legislative power to set how to remove government officers, employees

Under Section 2, Article XI of the 1987 Constitution, Congress is empowered to determine the modes of removal from office of all public officers and employees except the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman, who are all impeachable officials.

This provision reads:

Section 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. (Emphasis supplied)

The intent of the framers of the Constitution in providing that “[a]ll other public officers and employees may be removed from office as provided by law, but not by impeachment” in the second sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of “removal only by impeachment” to favored public officers.[1] Understandably so, impeachment is the most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui generis politico-legal process[2] that signals the need for a judicious and careful handling as shown by the process required to initiate the proceeding;[3] the one-year limitation or bar for its initiation;[4] the limited grounds for impeachment;[5] the defined instrumentality given the power to try impeachment cases;[6] and the number of votes required for a finding of guilt.[7] All these argue against the extension of this removal mechanism beyond those mentioned in the Constitution.

On the practical side, this nation has witnessed the complications and problems an impeachment proceeding entails, thus justifying its limited application only to the officials occupying the highest echelons of responsibility in this government. To name a few, some of the negative practical effects of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of prosecution alone; and, more importantly, it is inherently divisive of the nation.[8] Thus, in a cost-benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise legislate on the matter is far more advantageous to the country.

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should be read. Contrary to the implied view of the minority, in no way can this provision be regarded as blanket authority for Congress to provide for any ground of removal it deems fit. While the manner and cause of removal are left to congressional determination, this must still be consistent with constitutional guarantees and principles, namely: the right to procedural and substantive due process; the constitutional guarantee of security of tenure; the principle of separation of powers; and the principle of checks and balances.[9]

In short, the authority granted by the Constitution to Congress to provide for the manner and cause of removal of all other public officers and employees does not mean that Congress can ignore the basic principles and precepts established by the Constitution.

In the same manner, the congressional determination of the identity of the disciplinary authority is not a blanket authority for Congress to repose it on whomsoever Congress chooses without running afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the delicate check and balance mechanism under the Constitution. Properly viewed from this perspective, the core constitutional principle of independence is observed and any possible absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution itself vested Congress with the power to determine the manner and cause of removal of all non-impeachable officials, this power must be interpreted consistent with the core constitutional principle of independence of the Office of the Ombudsman. The Supreme Court's observation in Macalintal v. Comelec[10] is apt:

The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be “independent.”

While one may argue, for example, that the grounds for impeachment under Section 8(2) of RA No. 6770 is intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment - this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy Ombudsman’s head, by itself, opens up all the channels for external pressures and influence of officialdom and partisan politics. The fear of external reprisal from the very office he is to check for excesses and abuses defeats the very purpose of granting independence to the Office of the Ombudsman. (Gonzales III v. Office of the President, G.R. No. 196231, January 28, 2014)

That a judicial remedy is available (to set aside dismissals that do not conform to the high standard required in determining whether a Deputy Ombudsman committed an impeachable offense) and that the President’s power of removal is limited to specified grounds are dismally inadequate when balanced with the constitutional principle of independence. The mere filing of an administrative case against the Deputy Ombudsman and the Special Prosecutor before the Office of the President (OP) can already result in their suspension and can interrupt the performance of their functions, in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the very same ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices independent constitutional bodies. (Gonzales III v. Office of the President, G.R. No. 196231, January 28, 2014)

[1] The Framers’ concern in inserting the second sentence of Section 2, Article XI is fully supported by the intent expressed in the constitutional debates.

[2] Dennis Funa, Law on Administrative Accountability of Public Officers, p. 720. Fundamentals of Impeachment, Antonio R. Tupaz and Edsel C.F. Tupaz, p. 7; See Opinion of Justice Vitug in Francisco, Jr. v. House of Representatives, 460 Phil. 830, 957 (2003).

[3] CONSTITUTION, Art. XI, Section 3(1).

[4] CONSTITUTION, Art. XI, Section 3(5).

[5] CONSTITUTION, Art. XI, Section 2.

[6] CONSTITUTION, Art. XI, Section 3(6).

[7] Ibid.

[8] Thus, impeachment is characterized as essentially raising political questions or questions of policies created by large historical forces. Alexander Hamilton observed:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. (The Federalist No. 65 [www.constitution.org/fed/federa65, accessed on February 3, 2014].)

[9] Even the second restriction (on due process) on the President’s exercise of his power of removal of the Deputy Ombudsman does not emanate from Congress but from the Constitution itself. The fact that the Office of the Ombudsman is a constitutional office that enjoys independence from the three branches of government argues against any suggestion that the President can remove a Deputy Ombudsman at will without the requirement of observance of due process under Section 8(2) of RA No. 6770.

[10] Atty. Macalintal v. Comelec, 453 Phil. 586, 658-659 (2003), at 658.

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