Press Release
October 1, 2009


Opposition Senator Chiz Escudero yesterday reiterated that the term of Merceditas Gutierrez as Ombudsman expires this month as she is only serving the unexpired term of her predecessor, Simeon Marcelo.

Escudero, a member of the Judicial Bar Council, issued the statement after the House Committee on Justice dismissed the impeachment complaint against Gutierrez which, although was found sufficient in form, was adjudged insufficient in substance.

The 39-year old senator said Marcelo was appointed Ombudsman in October 2002 and resigned in November 2005, after which Gutierrez was as his replacement. He explained that because Marcelo served as Ombudsman for over three years, Gutierrez only has four years in office and it ends this month.

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.

"Gutierrez is not entitled to a full term of seven years, according to a 1955 Supreme Court ruling which has not been overturned. While she may have escaped impeachment, the Ombudsman might not overcome this legal impediment," Escudero said.

Citing the case of Republic v. Imperial, the Court ruled that: "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 during 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 said. It is the Office of the Ombudsman that has a fixed term of seven years and not the person occupying it, he pointed out

"The Office of the Ombudsman fits the rule enunciated by the Supreme Court in its 1955 decision," the senator said.

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