A physicist

Accountability finds itself at a conundrum.

With the ongoing fiasco over anomalous infrastructure projects, our institutions of government have scrambled in probing the multi-billion scandal. For its part, the House of Representatives held—and abruptly ended—an inquiry in aid of legislation over the issue. The Senate soon followed, but remains in limbo, following the shake-up in the powerful Senate Blue Ribbon Committee. Malacañang followed suit, with the president’s issuance of Executive Order No. 94, creating an Independent Commission for Infrastructure (ICI). But even the president’s panel has not been spared with controversies, because in just less than two months, ICI’s special adviser has resigned, 5 and a petition assailing its creation has been filed.

Notably, one institution has endured. Call it a happy accident. Or probably a simple coincidence. But amid the issues hounding the nation’s political leaders, a new Ombudsman has been appointed just last month. Called by the Constitution as the “protector of the people,” newly minted Ombudsman Jesus Crispin Remulla enters office at a time where the public is searching for answers: What happened? Why did this happen? Who is to blame?

So far, the probes have pointed to the possible involvement of legislators. The theory goes: lawmakers amended the General Appropriations Bill to create line-items for their own districts or chosen areas, then colluded with public works officials and contractors to receive “kickbacks”:

The ongoing Senate Blue Ribbon Committee inquiries have exposed an elaborate kickback distribution system—anchored in mutual benefit agreements between favored private contractors and a hierarchy of government entities—in plundering public funds from flood infrastructure projects. Political payoffs are normalized as the cost of doing business. In return, favored contractors operate under the protection of district engineers, lawmakers, and executive officials, while ghost projects, substandard works, and hazardous infrastructures proliferate. Testimonies, however, have also revealed a nefarious orchestration of selective truth-telling—designed less to expose systemic theft than to shield political patrons and recalibrate alliances.

The public’s focus now turns on whether the current investigations will be able to hold those legislators and other high-ranking officials accountable. But a significant hurdle is in play. Of course, the Senate and House of Representatives do not have the ascendancy to probe its own. It seems, then, that the ICI and the Ombudsman are the only remaining actors who are the likeliest to exact accountability from erring officials. Pertinently, the ICI cannot prosecute the accused individuals, as it is a mere fact-finding body—still, it can recommend who to indict.

As for the Office of the Ombudsman, the road ahead will not be easy. The Ombudsman Act dilutes the Ombudsman’s disciplinary powers over legislators:

Section 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)

It is clear from the Ombudsman Act that, generally, all elective and appointive officials in the government are subject to the Ombudsman’s disciplinary authority. However, three classes of public officers are exempt: impeachable officials, members of Congress, and the Judiciary.

In this paper, we will discuss the various considerations or issues surrounding Section 21 of the Ombudsman Act. We will analyze the said provision under the lenses of the Separation of Powers Doctrine, and the Constitution’s provisions on Accountability of Public Officers (Article XI).

I

Angara v. Electoral Commission explained the concept of separation of powers:

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere.

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But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins.

The classical formulation of the doctrine provides that the separation was necessary to guard against a concentration of power in a single person or branch. This thought was first enunciated by James Madison in Federalist No. 47. Madison went on to write that the fusion of legislative, executive, and judicial powers may be “the very definition of tyranny.”

Under the 1987 Constitution, the separation of powers doctrine means that lawmaking belongs to Congress, implementation of the laws belong to the executive, and the settlement of legal controversies belong to the courts. While a department is supreme within its own sphere, it still needs the cooperation of other branches for it to fulfill its constitutional roles. Thus, Congress requires the president’s signature to enact a law. The president cannot contravene laws enacted by Congress and must follow the law. The courts can declare the unconstitutionality and nullify laws passed by Congress, and executive actions done by the president.

In terms of discipline and accountability of public officials, the Constitution provides for intra- branch mechanisms. Within the executive branch—particularly presidential appointees—the power to discipline is vested in the president, pursuant to his power of control. In the legislative branch, this power is vested within the respective chamber of Congress, where the body may suspend or expel each member. In the judiciary, the Supreme Court exercises the power of discipline, pursuant to its power of administrative supervision over courts and their personnel.

Notably, the Supreme Court has categorically rejected the Ombudsman’s power to discipline personnel within the judiciary:

Article VIII, Section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges’ and court personnel’s compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers.

The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary.19

The same, however, cannot be strictly said for Congress.

There is no categorical pronouncement for members of Congress, because statutorily, the Ombudsman Act has already decreed that legislators are immune from the Ombudsman’s disciplinary powers. However, unlike the holding in Maceda, which is based on a provision of the Constitution, the exception under Section 21 of the Ombudsman Act finds no textual basis in our basic law. This is notable because Article XI of the Constitution does not seem to limit the disciplinary power of the Ombudsman over only executive branch officers. It is a basic rule in statutory construction that where the law does not distinguish, we should not distinguish. Ubi lex non distinguit nec nos distinguere debemos.

The exception has been used by the Senate in 2016. At that time, the Senate insisted on its institutional prerogative, when faced with an Ombudsman-ordered suspension of a senator. The Senate adopted the opinion of the Senate Legal Counsel:

The penalties imposed against Senator Villanueva by the Office of the Ombudsman cannot and should not be implemented by the Senate because the conditions or requirements for the penalty of expulsion of a Member of the Senate as required under Article VI, Section 16(3) of the Constitution and the Rules of the Senate are not present.

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The Office of the Ombudsman cannot compel the Senate and/or the Senate President to implement the penalties imposed upon Senator Villanueva. The authority of the Senate to discipline and punish its members is an inherent power. It may not be interfered with provided the procedure established in the Constitution and the Rules of the Senate are complied with.

It is worth noting that while not binding, the Senate’s contemporaneous interpretation or construction of the Ombudsman Act vis-à-vis by the Constitution is entitled to great weight.

II

There is a friction between Article XI and the “inherent power” of each governmental branch to internally discipline its own ranks (rooted from the doctrine of separation of powers). However, if we are truly to give meaning to the ideals and aspirations of the Constitution, we must strive to give life to every constitutional provision. After all, the Constitution is to be interpreted as a whole. Ut magis valeat quam pereat.

The 1987 Constitution spells the country’s policy toward accountability. It is state policy to take positive and effective measures against graft and corruption. Moreover, the Constitution has allotted an entire article regarding accountability of public officers. Explaining the importance of these constitutional innovations, the Supreme Court explained:

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant change. The new charter introduced an entire article on accountability of public officers, found in Article XI. Section 1 thereof positively recognized, acknowledged, and declared that ‘[p]ublic office is a public trust.’ Accordingly, ‘[p]ublic officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people.’

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that ‘[t]he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.’ Learning how unbridled power could corrupt public servants under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and solidified what has been first proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people at all times[.]

Our Constitution places so much premium on accountability that a scholarly work even called it the “accountability constitution”:

When seen as a whole, these points imply that the 1987 Constitution is an Accountability Constitution. The said principle is a key virtue in the charter’s subtext and objectives, and a unifying logic for how it calibrates the many facets of governmental power. As a virtue, accountability serves as a foundation for envisioning how the government is supposed to run and how its officers are supposed to act. Several accountability mechanisms are also found in the Constitution, placed there to bring virtue to life. The clear thread of political agency between the people, the government, and their representatives, and the intricate system of checks and balances not only guard against abuses of power but also provide remedies should they arise.

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With this view, the interpretation of provisions that grant or limit authority must favor an outcome that promotes greater answerability and minimizes impunity. This can be helpful—and perhaps, even correct—when grappling with tricky constitutional subsystems, such as the national budget cycle, in which separate powers and titanic interests converge. Carrying this strong accountability objective will be helpful not just with how the Constitution is litigated, but also with how it is lived.

As a result of an accountability-centered constitutional construction, the Supreme Court overturned the condonation doctrine, because there is “simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term.”

The same can be said of the Ombudsman Act. Under an accountability lens, there is no constitutional or statutory basis in our jurisdiction to support the notion that members of Congress are exempt from the disciplinary authority of the Ombudsman. After all, the Ombudsman was not only envisioned by the Constitution as an independent check on public officers, but also a protector of the people. In one case, the court even characterized it as an “activist watchman” and “a notch above other grievance-handling investigative bodies.”

In Gonzales III v. Office of the President, the Supreme Court strengthened the Office of the Ombudsman’s institutional independence by clarifying that deputy ombudsmen are not under the president’s disciplinary power. This decision further insulated the office from the prevailing political winds; that the Ombudsman is not a tool of the executive branch.

Anent the concept of accountability is the three-fold liability rule. Under the doctrine, any act or omission of any public official or employee can result in criminal, civil, or administrative liability, each of which is independent of the other. These facets of accountability result from the fact that each action has a different quantum of evidence to prove. Administrative liability has the lowest—-only substantial evidence is required to sustain the public officer’s guilt. Thus, the Ombudsman’s administrative disciplinary power is a potent tool in keeping erring officers away from the government bureaucracy.

At a time when abuses in the lawmaking process have been exposed and eroded trust in the government, it is high time that we reconsider the exemption of members of Congress from the administrative disciplinary powers of an independent and impartial Ombudsman.

III

There is some merit to the contention that subjecting lawmakers from the Ombudsman’s disciplinary power is akin to a Sword of Damocles hanging over them—possibly resulting in the impairment of their core legislative functions. However, this scenario is more apparent than real.

The Constitution grants lawmakers parliamentary immunity: “A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.”

The provision guards against any unwarranted encroachment—even malicious prosecution— in Congress’s lawmaking process. It is both an individual and institutional protection. Hence, a rogue Ombudsman cannot simply round up a lawmaker; nor may he use their utterances in floor debates for prosecution.

Moreover, our constitutional system of checks and balances provide safeguard against an erring and abusive Ombudsman. Congress holds the power of the purse. And if worse comes, Congress may also wield the power of impeachment. Congress is not without a tool to protect its institution from excesses—but it cannot, and should not, protect its erring members against meaningful accountability.

Surely, the framers of the Constitution did not envision administrative immunity for lawmakers. In fact, the Supreme Court has on several occasions clarified the metes and bounds of parliamentary immunity. We concede that the legislative branch is unique compared to other branches. In the executive branch, the executive president is vested solely in the president. In the judiciary, while all judges possess judicial power, the Supreme Court is vested with the administrative supervision. No similar structure, however, exists for Congress. The Constitution vests legislative power in Congress as an institution, and not upon individual lawmakers. Apart from their own peers, there is not a singular entity or body which exercises inter-branch disciplinary power over individual lawmakers. This is evidenced by the fact that suspension or expulsion of a member, due to disorderly behavior, may only be done by a two-thirds vote in his respective chamber.

What constitutes “disorderly behavior” is up for the chamber of Congress to decide, “not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which the House knows best but which [cannot] be depicted in black and white for presentation to, and adjudication by the courts.” As one scholarly article puts it:

A review of both U.K. and U.S. traditions reveals the absence of a definitive standard of conduct that provides a clear basis for the removal or expulsion of a member of Congress or Parliament. Furthermore, there is no judicial ruling or statutory provision that seeks to impose limitations on this power. As long as the required number of votes is obtained, a member of Congress or Parliament can be expelled for any reason. Ultimately, it is left to the discretion of Parliament or Congress to exercise restraint when exercising this power.

It is submitted that the signification of “disorderly behavior” is narrow such that it only includes unparliamentary conduct within the halls of Congress. In fact, only one lawmaker has ever been expelled in the Philippine Congress. In the case of former Rep. Arnolfo Teves, the House of Representatives expelled him not because of his involvement in the killing of his political opponent, but due to his prolonged absence, tantamount to abandonment of office. With Congress’s current attitude, it remains unlikely that it will ever consider graft and corruption as disorderly behavior.

Here is where the problem lies. In the legislative branch, erring members are subjected to the disciplinary powers of their own peers, and, in the end, a numbers game. Under this structure, coupled with their immunity against the Ombudsman, the people have less means to exact accountability against lawmakers. This is impermissible in a constitutional framework where accountability of public officers is given a high regard.

IV

There is a need to reconcile the public’s clamor for accountability and protect the institutional prerogatives of Congress. The exception in Section 21 of the Ombudsman act is arbitrary and finds no basis whatsoever in the Constitution.

Thus, it is time to subject members of Congress to the administrative disciplinary power of an independent and impartial Ombudsman. It is submitted that the exception in Section 21 of the Ombudsman Act is unconstitutional for it derogates the Constitution’s accountability mechanisms. Congress must remedy this by removing proviso as applied to members of Congress, but with a limitation that any suspension—as a penalty or as a preventive action—be only up to 60 days in conformity with the Constitution.

For if Congress is truly serious in regaining the people’s trust, it must start by being transparent. Letting the people’s protector—the Ombudsman—in its chambers is a step in the right direction.

Submitted for the Administrative and Law on Public Officers class under Atty. Noel R. Ostrea, 1st semester, A.Y. 2025-2026. Citations and footnotes were omitted in this version.