Press Release
March 11, 2009

Chiz: 'Ombudsman Gutierrez's term expires October 2009'

Opposition Senator Chiz Escudero on Wednesday said Ombudsman Merceditas Gutierrez has only seven months in office, as she is only serving the unexpired term of her predecessor, Simeon Marcelo.

"By my calculation, Ombudsman Gutierrez's term as head of the anti-graft body ends this October. She does not have a full term of seven years because she only serves the unexpired term of her predecessor," Escudero, a law professor, said from Australia. The senator, a member of the Judicial Bar Council, said Marcelo was appointed Ombudsman in October 2002 and resigned gracefully in November 2005, where Gutierrez was named as replacement.

"Marcelo served as Ombudsman for over three years and Gutierrez's tenure is now nearing four. Under the Constitution, the Ombudsman and his or her deputies shall only serve for seven years without the benefit of reappointment in the same position," Escudero said. He explained that Gutierrez is not entitled to a full term of seven years, citing a Supreme Court ruling in 1955.

Escudero said that the case of Republic v. Imperial stated: "When the Constitution fixes the duration of a term of office, and at the same time provides for its being filled at a fixed time occurring periodically, it necessarily follows that, a casual vacancy occurring such term of office, necessity must arise for filling it for the unexpired term; and although the mode of filling such vacancy is prescribed by the Constitution, yet the incumbent only holds until the time arrives for filling the office in the regular mode and at the regular time prescribed by the Constitution."

He explained that Section 9 of Article XI of the Constitution provides for the appointment of the Ombudsman and his or her deputies, which includes the President choosing from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter.

Section 11 of the same article provides for their terms of office, which is seven years, Escudero stated.

"So the Office of the Ombudsman fits the rule enunciated by the Supreme Court in its 1955 decision. It has not been overturned so it is still binding and absolutely enforceable," the senator said.

Put simply, Escudero said that it is the Office of the Ombudsman that has a fixed term of seven years and not the person occupying it.

"Therefore, to say that Gutierrez has only until October 2009 to serve as Ombudsman rests on firm and solid legal basis. This is a Supreme Court decision and all of us must follow the rule of law," he said.

Gutierrez is now facing possible removal from office as an impeachment complaint had been lodged against her at the House of Representatives.

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