By Fel V. Maragay

Ombudsman Merceditas Gutierrez has only seven months left before bowing out of service, since her appointment covers only the unexpired term of her predecessor, Simeon Marcelo, who resigned in 2005.

This was pointed out by Senator Francis Escudero, chairman of the committee on justice and human rights, who said that based on his calculation, Gutierrez?s term will expire by the end of October.

?She does not have a full term of seven years because she only serves the unexpired term of her predecessor,? said Escudero, who?s also a member of the Judicial and Bar Council.

Escudero cited this fact in the face of the impeachment case filed by civil society groups against Gutierrez, which could lead to her removal. She is accused of inaction on graft charges filed against public officials and personalities identified with the Arroyo administration.

Given this circumstance, observers say that if the House of Representatives does not act fast enough to dispose of the impeachment case, it may be overtaken by events?Gutierrez?s compulsory exit.

Records show that Marcelo was appointed Ombudsman in October 2002 and resigned in November 2005 to go back to private law practice. Gutierrez, then the chief presidential legal counsel, was named as his 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 to the same position,? said Escudero, who arrived from a visit to Australia on the invitation of Prime Minister Kevin Rudd?s government.

Escudero said Gutierrez is not entitled to a full term of seven years, citing a landmark Supreme Court ruling in 1995.

The high court ruling, in 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, necessarily 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.?

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

Section ll of the same article provides for their terms of office, which is seven years. ?So the Office of the Ombudsman fits the rule enunciated by the Supreme Court in its 1995 decision, it has not been overturned so it is still binding and absolutely enforceable,? Escudero said.

Simply stated, he said, it is the Office of the Ombudsman that has a fixed term of seven years and not the person occupying it.

?Therefore, to say 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,? Escudero said.