The Senate has been advised by its legal counsel against implementing the dismissal order issued by the Office of the Ombudsman for Senator Joel Villanueva, saying it has no authority over any members of Congress.
In a 15-page opinion dated November 17, Senate Legal Counsel Maria Valentina Cruz said the dismissal order in connection with the allegedly anomalous use of Villanueva’s P10 million “pork barrel” when he was still a congressman “cannot and should not be implemented on both procedural and substantive grounds.”
Villanueva received the order on November 2 and filed a motion for reconsideration on November 7.
Cruz noted that the Ombudsman’s own rules clearly stated that members of Congress are exempted from its administrative authority, citing in particular Section 21 of Republic Act No. 6770 known as the Ombudsman Act of 1989, and Section 2, Rule III of the Rules of Procedure of the Office of the Ombudsman.
“Section 21 of R.A. No. 6770, and Section 2, Rule III of the Rules of Procedure of the Office of the Ombudsman are very clear and there is no room for interpretation but only for application,” she said.
The legal counsel also pointed out that the offenses being hurled at Villanueva were allegedly committed when he was still a member of the House of Representatives as Cibac representative.
“It is quite unfortunate that the Office of the Ombudsman in its decision chose to characterize Senator Villanueva, when he was still a congressman, as being an “unelected official” because it considered him as being a mere ‘nominee/representative of Cibac,’” Cruz said.
“Although his name may not have appeared in the ballot during the May 2007 elections (since it was the name of Cibac which appeared in the ballot as one of the partylist seeking representation in the House of Representatives), still the fact that the Cibac party garnered enough votes to win 2 seats in the nationwide partylist vote in the May 2007 elections should consider him as being an elected official since he was the nominee or representative of such partylist.”
But whether or not Villanueva was considered an “elected” official from the point of view of the Ombudsman, Cruz said, it was beyond dispute that he was a member of Congress from 2007 to 2010 when the alleged administrative offenses purportedly took place.
She said the Office of the Ombudsman does not have jurisdiction over Villanueva for offenses he allegedly committed as a congressman.
“It would be absurd to say that the sole and exclusive jurisdiction over administrative offenses committed by congressmen during their term, which belongs to the House of Representatives, would suddenly, magically be transferred to the Office of the Ombudsman simply because their term of office had already ended,” the legal counsel said.
“Verily, there is no such thing as transfer of jurisdiction but only transfer of venue. Jurisdiction over cases is determined by law and the Constitution,” she further said.
Cruz said the Ombudsman still had no jurisdiction over Villanueva even after he became the Director of General of the Technical Education and Skills Development Authority (Tesda).
As Tesda head, she said, the Ombudsman had administrative authority over Villanueva “but only for administrative acts or omissions he may have committed as Tesda Director General.”
And as senator, the legal counsel also invoked the Senate’s authority to discipline or penalize its own members.
Cruz pointed out that under its rules, the Senate may suspend or expel its members for disorderly behavior, upon the recommendation of the committee on ethics, and with the concurrence of two-thirds of the entire membership of the chamber.
“It is submitted that under the principle of separation of powers and the provisions of Article VI, Section 16 (3) of the 1987 Constitution and Section 97, Rule XXXIV of the Rules of the Senate, it is the Senate and only the Senate, acting in accordance with its rules of proceedings, and only after the recommendation of the committee on ethics and privileges and the concurrence of two-thirds of its members, which can impose a penalty of either suspension of expulsion on any one of its members,” she said.
Cruz believes that the Ombudsman could not compel the Senate to implement the penalties against Villanueva.