• On the CA's TRO in the Binay Case and SOJ's Alleged "Unconstitutional" Opinion

“xxx”

Which is especially a timely insight in light of the recent controversy about the implementation of the Suspension Order issued by no less than the independent, Constitutionally created Office of the Ombudsman. Courts are not supposed to interfere unless the Office of the Ombudsman have acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. As an independent Constitutional body that plays a critical role in ensuring the accountability of no less than public officials, laws have been passed that further empowered the Office of the Ombudsman and protected it in the discharge of its mandate. After all, those who are subjects of inquiry of the Office of the Ombudsman are no ordinary citizens, but are often people in positions of power who can use their position and influence to derail its investigations.

"One of those legal provisions that see to strengthen and insulate or, least, protect the Office of the Ombudsman from undue interference is Section 14 of Republic Act No. 6770 or the Ombudsman Act of 1989, which expressly prohibits the issuance of injunctions, such as a TRO, by any court, that would delay an investigation being conducted, unless the subject matter of the investigation is apparently outside the jurisdiction the Office of the Ombudsman. Hence, it seems inexplicable why any court would issue a TRO against an Order of the Ombudsman, in cases that are obviously within its jurisdiction, such as those involving grave allegations of graft and corruption by a Chief Executive of a Local Government Unit, among others. The essence of the law is to say, "Let the Ombudsman do its job". It is difficult enough to hold powerful people  accountable, let us not make it more difficult by allowing court processes to be used to derail its investigations.

"So, too, the second paragraph of Section 14 clearly states that only the Supreme Court can hear an appeal or application for remedy against the decision or findings of the Ombudsman. Even then, only on pure question of law; not question of wisdom, policy or equity: PURELY QUESTION OF LAW. And only the Supreme Court.

"Yet, here we are now.

"And here I am now. Again being accused of having issued an unconstitutional opinion. In the first place, how can the act of rendering an opinion be unconstitutional? It does not purport to adjudicate or bind any one. It is an opinion. It is advisory in nature. How can such a mere act be unconstitutional? How can that be violative of the Separation of Powers when the request was made by another Department in the Executive Branch, which is merely seeking a legal opinion to guide them in determining how to proceed in the discharge of their own mandate, that is, the Department of the Interior and Local Government asking for a legal opinion on what recent developments mean for them when it comes to the leadership of a Local Government Unit. How can it be unconstitutional for the DOJ to respond to the query of the DILG when rendering such an opinion and legal advice is precisely our role, not just as principal law agency of the Philippine Government, but the undersigned's as well as Attorney General?

"Obviously, more is at play here than the application of law and the fulfillment of the ends of justice. So-called 'Expert Opinions' are a dime a dozen these days, and that is but right because of the Constitutionally enshrined freedom of speech. But that doesn't mean all these 'expert opinions' are right, especially when they suggest that those who are legally mandated to actually render an "expert opinion" is wrong to do so.

“xxx”

• On the Chief Executive Power Commander-in-Chief Power within the Mamasapano Context

"Speaking of Separation of Powers, much has been said about the Powers of the President, especially in light of the Mamasapano Incident. And the people have the right to attempt to understand the intricacies thereof.

"I wish to mention two of such powers: the Chief Executive Power and the Commander-in-Chief Power. The first is his primary constitutional mandate, one that he exercises on a daily basis. The other is one of his special powers, which was constitutionally enshrined to emphasize the supremacy of civilian authorities over military ones: a necessary legacy of our Martial Law years.

"When the PNP was taken away from the structure of the armed forces and placed under the Executive Department, though those belonging to it may have retained "militaristic mentalities" - which in itself might raise some concerns - it is a fact that it is now a part of the Executive and not the armed forces. Hence, the President's authority over the PNP is as Chief Executive, not as Commander in Chief.

"I mention this distinction, not to minimize or lessen the President's command responsibility in either scenario, if, when we speak of "command responsibility" we speak of accountability. The President is, of course, accountable. No questions about it.

"However, the distinction is important when we ask whether he has anything to account for in, as some say, "violating the Chain of Command".

"From the very beginning, we, in the DOJ, have been clear in saying that the 'Chain of Command as a military construct' isl not applicable to the PNP, especially in relation to the President's prerogatives. It is important to note the phrase 'as a military construct' because there is a 'chain of command' that we use in ordinary parlance to describe hierarchy in any organization.

"Why is the distinction important? Because we are referring to the concept of Chain of Command that dictates strict adherence, i.e., 'the line of authority and responsibility along which orders are passed within a military unit and between different units. Orders are transmitted down the chain of command, from a higher-ranked soldier, such as a commissioned officer, to lower-ranked personnel who either execute the order personally or transmit it down the chain as appropriate, until it is received by those expected to execute it.' We mean the concept that appears to suggest that the President cannot give direct orders to anyone in the PNP other than the official immediately. following him in the Chain of Command. This is not correct.

"Under the Constitution, 'The President shall have control of all the executive departments, bureaus, and offices. The PNP, as part of the executive department, is under the control of the President. Hence, he can give orders directly to lower-ranked officials without standing on strict protocol, unless the Constitution or the laws expressly require it or lays down a specific procedure for the exercise of such control.

"Hence, when he gives an order, addressed to anyone in the Executive Department, he has the right to expect that he be followed, regardless of the relative positions in the hierarchy.

"Thus, it is incorrect to suggest that the President violated the Chain of Command in the PNP.

"But, again, that does not mean that the President is not accountable. In fact, he has, time and again, admitted that his mistake may have been to trust the wrong people, who ended up giving him inaccurate, if not outrightly false, information.

"But that is an error in judgment that one can only know from hindsight.

"As we all know, hindsight is 50-50, and it is so easy to play armchair Presidents these days.

• “xxx”