Did PNoy allow Merci to resign as Ombudsman?

Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
July 11, 2011



Did President Benigno C. Aquino III allow Merceditas N. Guiterrez to resign as Ombudsman?

It is respectfully submitted the answer is YES.

Background
1. On July 22, 2010, a complaint for impeachment was filed against then sitting Ombudsman, Merceditas N. Gutierrez, before the House of Representatives, for acts constitutive of graft and corruption and betrayal of public trust.

2. Subsequently, the corresponding articles of impeachment were filed with the Senate. Initial hearing was set on May 9, 2011.

3. On April 29, 2011, or nine (9) days before the hearing, Gutierrez resigned. Her letter to President Aquino reads:

“Dear Mr. President,

I am tendering my resignation as Ombudsman of the Republic of the Philippines effective on the close of office hours of May 6, 2011.

Upon the effectivity of my resignation, I shall be reverted to the status of a sovereign citizen who will continue working for good governance.

Very truly yours,
(sgd.)
Merceditas N. Gutierrez”

4. On the lower left portion of the letter appears the term “RESIGNATION ACCEPTED:”, followed by the presidential signature and seal.

Queries
5. Was Gutierrez a public officer? YES, following the logic of the House of Representatives, the Supreme Court, and the Office of the President.

6. Was there a pending investigation against her at the time she filed her resignation? YES. Her impeachment was pending before the Senate. The sole purpose was to REMOVE her from office. The proceeding was, therefor, administrative in nature.

7. Was the presidential acceptance of the “resignation” lawful? NO. It appears contrary to an express prohibition under the Anti-Graft and Corrupt Practices Act, or R.A. 3019, which provides that:

“NO PUBLIC OFFICER SHALL BE ALLOWED TO RESIGN or retire PENDING AN INVESTIGATION, criminal or ADMINISTRATIVE, or pending a prosecution against him, FOR ANY OFFENSE UNDER THIS ACT or under the provisions of the Revised Penal Code on bribery.” (Sec. 12. Emphasis supplied.)

8. Under the 1987 Constitution, the Chief Executive has the DUTY to “ensure that the laws be faithfully executed” (Sec. 17, ART. VII). Did he do that when he accepted the resignation of Gutierrez? NO. He acted against the legal prohibition.

Consequently, President Aquino appears to have unwittingly created a legal ground for his own impeachment.