Abused by elected officials? How SC struck down condonation doctrine
MANILA, Philippines – In a recent ruling on Makati Mayor Jejomar Erwin “Junjun” Binay Jr's petition to stop his preventive suspension by the Ombudsman, the Supreme Court also decided to kill the condonation doctrine.
It is a principle that many other elected officials had invoked since 1959. Under the doctrine, the administrative offenses of an elected official are already deemed forgiven when the public decides to re-elect him or her for another term.
Voting 7-3, the SC en banc ruled on November 10 to uphold the CA’s power to review and stop orders issued by the office of Ombudsman Conchita Carpio-Morales against elected officials facing administrative cases before it. (READ: Justices to Ombudsman: Why fight CA powers only now in Binay case?)
But it also said that the abandonment is prospective in nature or only applicable to future cases.
This means that the CA did not err in stopping Binay’s first 6-month preventive suspension order from the Ombudsman.
How did the SC justices arrive at this ruling?
Binay invoked the condonation doctrine when he asked the CA to stop the preventive suspension order against him over the alleged overpricing of the Makati city hall parking building II.
He said that the supposed anomalies in the contracts for the first two phases of the city infrastructure project occurred when he was not yet elected local chief executive of Makati.
Binay did sign the notices of award for Hilmarc’s Construction Corporation, the company that allegedly cornered contracts for the Makati city hall parking building II, but this occurred during his previous term as city mayor from 2010 to 2013. He was re-elected in the 2013 elections.
In March this year, Binay was able to convince the CA to issue a temporary restraining order and a temporary injunction to stop his preventive suspension. (READ: Trillanes: CA justices got P50M for Binay orders)
For the SC, however, the CA did not commit grave abuse of discretion in doing so because the High Court still recognized the legality of the condonation doctrine at the time.
After reviewing the doctrine when the Ombudsman questioned before the SC the CA’s decision, a majority of the High Court justices decided that the said doctrine is now “bereft of legal basis” based on the 1987 Constitution and the Local Government Code.
“To begin with, the concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official’s administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post,” the ruling said.
Concurring and dissenting opinion
For Associate Justice Lucas Bersamin, joined by Associate Justices Teresita Leonardo De Castro and Jose Perez, it was “plain error” for the SC to decide on the Binay case using the condonation doctrine.
In a 10-page concurring and dissenting opinion released Friday, Bersamin said the High Court should have referred to Section 24 of Republic Act No 6770 or “The Ombudsman Act of 1989" instead.
The provision sets the following conditions for the Ombudsman to preventively suspend a public official or employee pending an investigation:
- if the evidence of guilt of strong
- if the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty
- if the charges would warrant removal from the service
- if the respondent's continued stay in office may prejudice the case filed against him
Bersamin argued that the condonation doctrine should only apply when the public official in question is already up for re-election, not when he or she is still undergoing investigation like Binay.
"Condonation necessarily implies that the condoned act has already been found to have been committed by the public officer. Hence, condonation applies to the penalty or punishment imposed after the conduct of an administrative investigation,” he said.
Bersamin added that the condonation doctrine should not apply to Binay yet because his preventive suspension order was not a penalty in itself but a “mere measure of precaution to enable the disciplining authority to investigate the charges by precluding the respondent from influencing the witnesses against him.”
According to the associate justice, a preventive suspension is “imposed on a public official during the investigation” while a suspension is already a penalty “served after the final disposition of the case.”
Less room for corruption?
Still, the condonation doctrine is already abandoned. Officials seeking re-election can no longer invoke it to escape from their administrative offenses.
In its ruling, the SC said that, from July 2013 to December 2014 alone, 85 cases from the Ombudsman’s Luzon office and 24 cases from its central office were dismissed because the public officials in question invoked the condonation doctrine.
“Thus, in just one and a half years, over a hundred cases of alleged misconduct – involving infractions such as dishonesty, oppression, gross neglect of duty and grave misconduct – were placed beyond the reach of the Ombudsman’s investigatory and prosecutorial powers,” the SC quoted the Ombudsman as saying.
Copies of Carpio-Morales v CA and Bersamin's concurring and dissenting opinion are found below:
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