SUPREME Court (SC) justices struck down as unconstitutional on Tuesday the provision in the Ombudsman Act of 1989 that allows the President to remove a Deputy Ombudsman if proven guilty of illegal acts.

Section 8(2) Republic Act 6770 grants the President the power to remove the Deputy Ombudsman and Special Prosecutor. But with the Court ruling, SC spokesperson Theodore Te said the President’s disciplinary power is only limited to the Special Prosecutor.

“Several justices have indicated that they will submit separate opinions; pending the promulgation of the decisions, the identities of the justices will not be disclosed,” said Te.

The SC was actually split in this issue in September 2012, when seven magistrates voted for the provision’s constitutionality while the other seven thought it had no place in the law.

The SC lacked one member then since Marvic Leonen, formerly the government’s chief peace negotiator with the Moro Islamic Liberation Front (MILF), was only named by President Benigno Aquino III to the High Court in late November 2012.

Court rules provide that a deadlock shall result in the dismissal of the petition questioning the constitutionality of a law.

Associate Justice Arturo Brion, who voted against the provision nearly two years ago, had said the power to discipline or remove an official of the Office of the Ombudsman should only be lodged with the Ombudsman so as not to affect its independence.

“The Ombudsman can hardly be expected to place her complete trust in subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls external to her Office,” he said in his concurring and dissenting opinion.

Even if the Constitution does not explicitly state any specific ways to remove the commissioners of constitutional commissions and deputy ombudsmen, Brion said Congress cannot step on their independence.

The decision stemmed from the contention of Deputy Ombudsman Emilio Gonzales III that he was unceremoniously removed by Malacañang in March 2011 for sitting on the case and asking for bribe money from a policeman involved in the bloody Manila hostage-taking in August 2010.

Gonzales was vindicated as the SC junked the Office of the Solicitor General’s motion for reconsideration.

The Incident Investigation and Review Committee (IIRC), which looked into the shooting incident, scored then Ombudsman Merceditas Gutierrez and Gonzales for not following the five-day period to issue a resolution regarding appeals in administrative cases.

In the case of Senior Inspector Rolando Mendoza, who was accused of extorting a motorist in 2009, the appeal for his reinstatement was allegedly left languishing for over nine months from November 2009.

But records show Gonzales reviewed and denied Mendoza’s appeal within nine days from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to Gutierrez.

Speaking for the Court, Associate Justice Estela Perlas-Bernabe said failure to immediately act upon a party’s request for early resolution of the case cannot be equated to betrayal of public trust, one of the grounds needed to kick out a Deputy Ombudsman and Special Prosecutor.

“There was no evidence at all of any bribery that took place, or any corrupt intention or questionable motivation,” the decision stated, clearing the way for Gonzales' return to his post.

Gonzales will retire from the service on February 6. (Sunnex)