The case of Gov. Tupas
26 August 2009

Niel Tupas Sr. was elected Governor of Iloilo in 2001, 2004 and is now on his third term, after having been consistently reelected by his constituents since.

During his first term as governor, the Sangguniang Panlalawigan of Iloilo passed Resolution No. 2002-188 dated 17 December 2002 which approved the annual development and investment plan of the province in the amount of ten million pesos. Sometime in December 2003, Board Member Henry Anotado requested from Gov. Tupas the disbursement of P20,000 drawing from the P10 million that was approved earlier by the Sangguniang Panlalawigan. The request for P20,000 was released on January 2004.

From the period of March to August 2005, several complaints for malversation of public funds and grave misconduct were filed against Governor Tupas and a number of other local officials before the Office of the Ombudsman for the Visayas. These were mainly pertaining to the above-cited funds. Governor Tupas and his co-respondents accordingly filed their counter-affidavits .

It must be noted that the acts being complained happened before the May 2004 elections.

The case was handled and resolved by the Ombudsman for the Visayas on 17 June 2005 for which the cases against him and other local officials were dismissed finding no sufficient evidence to indict them. However, sometime in 2006, Ombudsman Gutierrez assumed jurisdiction of the case without knowledge and notice to the Governor and other parties. On December 2006 she issued a decision finding Gov. Tupas and other local officials guilty of malversation of public funds and graft and thereupon ordered their dismissal from office with the accessory penalties of cancellation of eligibility, forfeiture of retirement, benefits and perpetual disqualification to hold public office.

Wittingly or unwittingly though, in a strange twist of developments, the decision of the Ombudsman for the Visayas clearing the Governor and other local officials reached the Head Office of the Ombudsman. Ombudsman Gutierrez approved the findings of the Ombudsman for the Visayas and cleared Gov. Tupas on 6 October 2008. So we now have before us, two contradictory decisions from the Ombudsman Gutierez.

What are the ultimate facts:

1)Iloilo Gov. Niel Tupas ran for re-election in 2004 and won his second term.
2)Gov. Tupas is known to be in opposition to the present administration.
3)In spite of the fact that the Ombudsman for the Visayas based in Cebu originally investigated the cases against Gov. Tupas, the Ombudsman based in Manila suddenly took over the cases without even notifying Gov. Tupas, even though Section 28 of the Ombudsman Act (RA 6770) allows the investigation to be conducted by the Regional Deputy Ombudsman.
4)Contrary to the Rules of the Ombudsman and the constitutional due process that mandate that all persons should be given an opportunity to be heard, the Governor was never given any opportunity to present evidence, to refute adverse evidence, or to submit their position papers.
5)The execution of the dismissal order against Gov. Tupas notably happened at the start of the election campaign period for the 14 May 2007 elections.

This is a clear case of betrayal of public trust.

The manner by which the dismissal order was issued as well as the timing of its issuance shows a pattern of hostility and arbitrariness against Gov. Tupas to effectively disqualify him from running in the May 2007 elections. For an institution whose task requires it to be non-partisan, the Ombudsman has clearly used her office for partisan purposes.

The Ombudsman has no power to remove public officials from office, hence the dismissal orders against Governor Niel Tupas and other local officials are illegal.

Article XI, Section 13, paragraphs 1 and 3 of the 1987 Constitution provides:

“Section 13. The Office of the Ombudsman shall have the following powers, functions and duties:

(1)Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

xxx xxx xxx

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance herewith.” (emphasis mine)

This is further amplified in the cases of Madriaga vs Nuque (CA-G.R. SP No. 66306, May 28, 2004; Salalima vs Guingona (257 SCRA 55, 100 [1996]); and Pablico vs. Villapando, G.R. No. 147870, 31 July 2002.

Moreover, since Gov. Tupas is an elective public official, Section 60 of RA 7160, the Local Government Code, is applicable. The power to remove local elective officials is vested exclusively with the courts. The courts referred to are courts of justice; namely, the SANDIGANBAYAN and the PROPER COURTS. The Ombudsman is NOT a court.

The Ombudsman cannot impose the penalty of perpetual disqualification. The penalty of perpetual disqualification is punitive in nature and therefore can be imposed only by the courts in criminal cases. While the Ombudsman may have the power to recommend the removal of a public official pursuant to RA 6770, the said law does not provide the Ombudsman the power to perpetually disqualify a public official to hold public office. Also, the penalty of perpetual disqualification is an accessory penalty. There should first be a conviction by the proper court and imposition of a principal penalty carrying with it a perpetual disqualification to hold public office. It necessarily follows that before the accessory penalty of perpetual disqualification may be properly imposed the accused should first be found guilty of a crime in relation to public office.

Lastly, the acts subject of the case, as earlier mentioned, happened prior to the May 2004 election. Considering that Gov. Tupas was re-elected overwhelmingly in May 2004, the case complained of should have been dismissed outright for becoming moot and academic as held in the case of Garcia vs. Mojica [G.R. No. 139043, Sept. 10, 1999]

Based on the foregoing, it is clear that the Ombudsman betrayed the public trust.

The foregoing acts and the dismissal from office with the accessory penalties of cancellation of eligibility, forfeiture of retirement, benefits and perpetual disqualification to hold public office of Gov. Tupas without due process shows that Ombudsman had culpably violated the Constitution.

Section 1, Article III of the 1987 Constitution provides that no person may be deprived of life, liberty or property without due process of law. Gov. Tupas’ right to office was violated, when a dismissal order against him was issued without affording him the opportunity to move for the conduct of a formal investigation rendering him unable to refute the charges against him. This is a violation of his right to procedural due process, which guarantees an opportunity to know the charges against him and to be heard as to his defense thereto. The Ombudsman acted like a court, dispensed justice and imposed the punishment of dismissal with accessory penalties and perpetual disqualification as if she was authorized to do so. Consequently, the Ombudsman culpably violated the Constitution.


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