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The
issuance of a preventive suspension is one power of the
Ombudsman that is not well understood. Both elected and
appointive government officials being investigated by
the Ombudsman claim they have a right to security of
tenure. They are right only to some extent—they
certainly are entitled to due process before they are
dismissed.
But that
is dismissal, which is a penalty. Preventive suspension
is a preventive measure, not a penalty; and it can be
imposed by the Ombudsman or a deputy Ombudsman at any
time after the complaint is filed and the administrative
adjudication process begins, even without the
complainant applying for it!
Also,
there need not be a prior hearing before preventive
suspension is issued, because, again, it is just a
preventive measure, not a penalty. It is meant to aid
the Ombudsman’s Office in the proper investigation,
especially of a highly placed official who may, during
his investigation, threaten witnesses or destroy or hide
evidence if he is not suspended.
It may
happen also even if the respondent is not so highly
placed that, during his investigation, he becomes too
busy attending to his defense that the services
dispensed by his office grind to a halt, to the
prejudice of the public.
At least
two laudable reasons are thus recognized as attached to
every preventive suspension: (a) to take away as much as
possible the opportunity for the respondent to tamper
with evidence; and (b) so that the service his office is
mandated to give the public is not interrupted, since
while the respondent is temporarily away, someone else
in his office takes over. I may add another: to ensure
the official’s availability any time the Ombudsman
requires him to appear.
Preventive suspension, however, cannot be imposed just
like that. It has to follow set parameters, namely, the
evidence of the guilt of the respondent is strong, and
any of these: (a) the charge involves dishonesty,
oppression, grave misconduct or neglect of duty; (b) the
charge is one that, if proved, warrants removal from
office; or (c) the evidence of the guilt of the
respondent is strong, and his continued stay in the
office may prejudice the case against him.
The law
(The Ombudsman Act of 1989, RA 6770) does not define
what strong evidence of guilt means. Instead, it leaves
it to the Ombudsman to determine its existence. As the
law itself says, the Ombudsman may impose preventive
suspension pending an investigation “if in his judgment”
the evidence of guilt is strong.
In
determining whether the condition is met, the Ombudsman
carefully considers only the evidence before it, nothing
else (such as the popularity or unpopularity of the
respondent). This can be tough on the Ombudsman who
must, at times, act against public sentiment.
How long
does preventive suspension last and is it without pay?
It lasts, until the case is terminated by the Ombudsman,
but it cannot exceed six months, unless the respondent
himself had caused the delay in the disposition of the
case. And yes, it is without pay. The period of
preventive suspension cannot be credited to whatever
penalty that may be meted out.
Finally,
preventive suspension may be shortened or even lifted
for a just cause. There is no need for a hearing before
it is lifted. And the complainant cannot object because,
among others, this provides the balance to the rule that
a hearing is not required either when preventive
suspension is imposed in the first place.
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I
welcome feedback at ombproper@ombudsman.gov.ph. The
above is meant only as a general guide, and is not a
prediction of what the Ombudsman will do in actual
cases. The assistance of counsel must be sought for
specific advice as to rights and obligations also in
actual cases. |
