MARCELO, Ma. Costa Rica B.

Public International Law

Adamson University College of Law

Asst. Ombudsman Leilani Bernadette Cabras

February 28, 2018

Our nation is now being faced with what it seems like a constitutional
crisis due to a clash between the stance of Ombudsman Conchita Carpio-
Morales and that of the President Rodrigo Duterte.

Said conflict arose due to the suspension order of Malacañang against

Overall Deputy Ombudsman Melchor Arthur Carandang.

The Ombudsman has issued a statement asserting the independence of

her office and assailing the suspension order of Malacañang against Overall
Deputy Ombudsman Melchor Arthur Carandang.

Carpio-Morales described the suspension order as "a clear affront to the

Supreme Court and an impairment of the constitutionally enshrined
independence of the Office of the Ombudsman." She cited a Supreme Court
jurisprudence decided during the term of then President Benigno Aquino III,
which states that the President cannot suspend a deputy ombudsman as the
said act is "patently unconstitutional." In the Supreme Court en banc in
Gonzales III v. Office of the President (G.R. No. 196231, January 28, 2014), "the
Supreme Court categorically declared unconstitutional the administrative
disciplinary jurisdiction of the President over deputy ombudsmen." "The
Ombudsman cannot, therefore, seriously place at risk the independence of the
very Office which she has pledged to protect on the strength of the constitutional
guarantees which the High Court has upheld," Carpio-Morales stated in a
statement posted on the Ombudsman's official website.1

In regard to this, this paper has compiled some of the opinions, views and
positions surrounding the issue. How independent are the independent
agencies? Are they really untouchable by the executive branch? What are the
constitution’s and the court’s roles in resolving this dispute.

An article from Katiba Institute, an organization in Kenya that works to

help promote the implementation of the constitution, narrates how independent
their independent offices are. It adds that the independence of the independent
commissions and offices is ensured by constitutional provisions that they are
subject only to the constitution and the law, and are not to be directed or
controlled by any person or authority (including the president).2

Therefore, the remedy of the Kenyan independent commissions, when

encountered with a dispute with the executive branch, it appears that it may ask
the courts to settle the matter by upholding the Constitution.

“The Regulatory Review”, an online source of regulatory news, analysis,

and opinion, housed at the University of Pennsylvania Law School, has also
written in one of its narratives, that even though an independent agency is free
from presidential influence, it might still fall under the control of Congress, which
often sets its budget and can call hearings on the agency’s operations. 3
 In addition to being able to make decisions free of inherent political bias,
independent executive agencies do not function at the pleasure of the White
House or Congress. This means that while both of these bodies can criticize the
actions of the executive agencies, they cannot take direct action to punish these
agencies for decisions they make. However, a legislator might call to reduce the
agency's funding, which is controlled by Congress.4

The administrative law of United States says that, generally, claimants

aggrieved by agency action must obtain a final decision of the agency before
resorting to judicial review. This means that the claimant faced with a negative
action by an agency must exhaust the appeal procedures the agency provides.
This is said to assure economical use of judicial and administrative resources, to
promote administrative autonomy and responsibility by providing the agency
with the opportunity to correct its own mistakes, and to further the legislative
purpose of granting authority to the agency by requiring that its procedures be
respected. However, the exhaustion will not be required if it would be futile, such
as where the agency is bound by applicable law to decide against the claimant
wishes to challenge that law.

A person injured by an agency action may seek judicial review of a

federal court but must show that the relevant statutes that were intended to
protect him from the type of injury they complain of. 5

According to a write-up by The Washington Post, Independent agencies

are free to make their own decisions without having to first check with the
president. Although they have much more autonomy than their Cabinet
Department colleagues, independent agencies are still subject to congressional
oversight. That means that Congress is always keeping an eye on what the
agency is doing, and the agency leaders may even have to appear before some
members of Congress (assembled in committees) to explain their decisions (or
indecisions). This oversight of the agencies by Congress is how we ensure that
these independent agencies don’t become too powerful.

The heads of these agencies are appointed by the President, but must be
confirmed by the Senate. Because of the important and specialized work that
these agencies do, they are insulated from much of the political pressure that
often influences members of Congress, the President, and cabinet-level
agencies.

Unlike the heads of the cabinet departments, whom the President can fire
for any reason at all (like if the Secretary of Defense were to disagree with the
President in public), the heads of independent agencies cannot be removed by
the President unless he has “cause” — that is, a really good, legitimate reason
regarding their job performance.6
Reference:

1. http://www.sunstar.com.ph/manila/local-news/2018/01/31/ombudsman-
asserts-independence-slams-carandang-suspension-order-586618

2. http://www.katibainstitute.org/all-you-need-to-know-about-independent-
commissions-offices/

3. Stephan, P., 2016 December 14, Are Independent Agencies Really

Independent?, https://www.theregreview.org/2016/12/14/stephan-independent-
agencies-really-independent/

4. Wolfe, M., The Advantages of Independent Executive Agencies,

http://smallbusiness.chron.com/advantages-independent-executive-agencies-
22575.html

5. Burnham, Administrative Law,

http://lawandborder.com/Academic/IntroUSLaw/Burnham%20Book/Burnham--
Chap6--AdminLaw.pdf

6. The Washington Post,

https://nie.washingtonpost.com/sites/default/files/CabinetandIndependentAgenci
es.pdf