SC justices shed light on Ombudsman's power to probe
BAGUIO CITY, Philippines – When it passed Republic Act (RA) 6770 or the Ombudsman Act of 1989, Congress conditionally prohibited courts from issuing writs of injunction "to delay" an Ombudsman probe.
Section 14 of RA 6770 reads:
"Section 14. Restrictions – No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law."
Section 14 of RA 6770 became the subject of careful textual examination on Tuesday, April 21, during the 2nd day of oral arguments on the high-profile case of Ombudsman Conchita Carpio Morales against Makati Mayor Erwin Jejomar "Junjun" Binay Jr.
With the politically charged nature of the case, Justice Marvic Leonen insisted that "the only fulcrum that we have is to look at the law itself" and "that is our only solace."
Associate Justices Leonen and Estela Perlas-Bernabe zoomed in on Section 14. They quizzed Binay's lawyers on the legality of the restriction, the meaning of "delay," the character of the "investigation," and the nature of the "appeal" or "remedy" contemplated under Section 14, among others.
In her petition to the Supreme Court (SC), Morales invoked the subject provision of the law in arguing against the 60-day temporary restraining order (TRO) and subsequent preliminary injunction issued by the Court of Appeals (CA) in favor of Binay.
The CA writ stopped the Ombudsman-ordered 6-month suspension of Binay Jr, while it decides on the main case of whether Morales erred in issuing the said suspension order.
Suspension = investigation?
Binay's lawyer Sandra Marie Olaso-Coronel believes her client's suspension is not covered by Section 14, which prohibits courts from issuing injunctions "to delay" an Ombudsman probe, with exception.
On the other hand, the questioned CA injunction was issued against an Ombudsman suspension order and not the entire probe.
But Justice Bernabe asked: "Would not lifting the suspension [order] impede the Ombudsman's access to the documents on respondent's custody and as such would have the effect of delaying such investigation?"
Coronel insisted that the investigation can proceed with or without the suspension.
In questioning Coronel, Justice Leonen also stressed that a preventive suspension is "ancillary," "auxiliary," and "accessory" to an Ombudsman investigation.
An official is suspended by the Ombudsman in administrative cases, pending investigation, to prevent him from using his power to frustrate the proceedings, like hiding or destroying evidence, or threatening or bribing witnesses.
Reelected in 2013, Binay is being investigated for criminal complaints of malversation, graft and violation of the procurement law over the allegedly overpriced construction of a Makati city hall building.
His suspension is linked to the administrative charges of grave misconduct, serious dishonesty, and conduct prejudicial to the best interest of the service over the same deal.
Pressing Coronel for answers, Leonen asked whether the preventive suspension ordered by Morales against Binay is part and parcel of the Ombudsman's power to probe granted by the Constitution and under Section 14.
"We cannot concede that completely," said Coronel, adding that the Ombudsman has been granted other powers.
She argued that a preventive suspension "is not necessarily equatable to investigation."
"I hesitate to commit that it (suspension) is necessary for the investigation," she said in response to Leonen.
'Irreparable' injuries at stake
Competing interests are at stake in the Binay Jr case before the SC.
On one hand, Binay Jr felt he was the injured party when a suspension order was issued against him.
The suspension deprived Binay Jr of his ability to perform his duty to his electorate, argued lawyer Claro Certeza, who is also representing him before the SC.
On the other hand, the Ombudsman also felt injured when its suspension order in relation to its probe was stopped by the CA.
Discussing the appropriateness of the petitions for certiorari of both camps, Leonen noted how both parties did not appeal the decisions they later on questioned in higher bodies.
"It seems that both sides have not complied with the requirement that there be a motion for reconsideration filed first," he said.
Binay Jr did not appeal the suspension order before the Ombudsman, despite this option being available to him. Likewise, the Ombudsman did not appeal the injunction before the CA. In a complicated legal battle, Binay Jr ran immediately to the CA, and the Ombudsman, immediately to the SC.
Bernabe also delved into the nature of an injunction, such as the one issued by the appellate court.
Bernabe asked what the "irreparable injury" was if Binay is suspended, when the rule of succession exists anyway. Under this rule, the sitting vice mayor would have to act as mayor for the time being.
Certeza explained that the irreparable injury – a standard for the issuance of an injunction – was that the Ombudsman acted in grave abuse of discretion for issuing the suspension order in haste and not considering the condonation doctrine.
Not a determination of guilt
In arguing before the CA against his suspension, the Makati chief executive invoked the controversial condonation doctrine, which absolves reelectionists of misdeeds committed in a previous term. (READ: Sereno: P389B in gov't funds at stake in condonation 'mess')
But Morales herself has said that the condonation doctrine is not an argument against a preventive suspension, as the referred suspension is not a determination of guilt. (READ: Binay reelection not an argument vs suspension – Ombudsman)
In effect, she was asking: What was there to absolve? (READ: Mayor Binay's reelection argument based on assumption – Ombudsman)
In a supplemental petition before the SC, the Ombudsman through the Solicitor General argued the following:
"6. It must be further emphasized that the condonation doctrine is irrelevant in the Ombudsman’s determination of whether the evidence of guilt is strong in issuing preventive suspension orders. Said doctrine does not go into the heart of subject-matter jurisdiction. Neither can it oust the Ombudsman of her jurisdiction which she has already acquired. Private respondent’s claim of condonation doctrine is equally a matter of defense which, like any other defense, could be raised in the proper pleading, could be rebutted, and could be waived.
As a defense, condonation should be passed upon after a decision on the administrative proceedings, not this early in the proceeding.
7. The condonation doctrine, however, cannot abate the issuance of a preventive suspension order, precisely because an order of preventive suspension does not render a respondent administratively liable. A respondent may be preventively suspended, yet may be exonerated in the end."
During the oral arguments, Justice Bernabe also asked, "Is the condonation doctrine applicable if what is involved is merely a preventive suspension order which is only a preventive measure and not a liability determination?"
Coronel pointed to "previous rulings where the [Supreme] Court specifically directed the Court of Appeals, reminding it of its duty to render assistance in the event of grave abuse of discretion committed by the Office of the Ombudsman...that the condonation doctrine was not appreciated by the Office of the Ombudsman in a preventive suspension case."
Coronel did not name these rulings during the oral arguments, but Bernabe – without showing whether she was satisfied or not with the answer – moved on to other matters.
Justices have indicated support for revisiting the doctrine. (READ: Carpio, Sereno suggest revisiting condonation doctrine)
Not the venue to revisit condonation doctrine?
The Binay camp believes Ombudsman Morales' petition is not the venue for revisiting the condonation doctrine.
"This is a Rule 65 petition where the only issue is grave abuse on the part of Court of Appeals," said Coronel, referring to the character of a petition for certiorari, which was what Morales filed.
"There is yet no occasion specifically in this case, it is humbly submitted, for the court to review the condonation doctrine," she said.
"After all, the respondent humbly submits that the opportunity to revisit the doctrine of condonation will have to await a proper case filed before this court on a Rule 45 when an error of judgment is alleged in an appeal," Coronel said. – Rappler.com