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MANILA, Philippines – The Court of Appeals’ (CA) issuance of a temporary restraining order (TRO) against the 6-month preventive suspension of Makati Mayor Jejomar Erwin Binay Jr “came too late in the day.”
This was the statement made by Justice Secretary Leila de Lima in a legal opinion issued Tuesday, March 17.
De Lima’s comments echoed the respective positions of the Department of the Interior and Local Government (DILG) and the Ombudsman on the issue.
The justice secretary said the TRO was already “moot and academic” since it was issued hours after the suspension order was served.
“A temporary restraining order, by its very nature and definition, seeks to restrain the commission of a future act, or an act yet to be performed but threatened to be performed by the respondent in the case,” De Lima said.
The Ombudsman announced the suspension of Binay on Wednesday, March 11.
The DILG served the suspension order 5 days later – at around 8:30 am Monday, March 16. At 9:47 am, Makati Vice Mayor Romulo Peña Jr was sworn in as acting mayor.
The TRO was issued around noon Monday. DILG said it received notice of the CA resolution at 3:09 pm.
The justice secretary said it is a “universal principle in law” that “when the event sought to be prevented by injunction or prohibition has already happened, nothing more could be done in reference thereto.”
De Lima also echoed the position of Ombudsman Conchita Carpio Morales that the TRO did not specify the acts that it was seeking to restrain.
Even if the TRO was issued against the issuance of the Ombudsman Joint Order or the implementation of the joint order, both acts have already been carried out and are no longer bound by the TRO, De Lima said.
“Simply put, the CA’s TRO came too late in the day. There is no other action that is needed on the part of the Ombudsman or the DILG that would amount to its violation or non-observance,” De Lima said.
Binay maintains that the TRO is valid. After the TRO was issued Monday, Binay held a press conference to thank the court for granting the petition.
He also got the support of some lawyers who say that Binay cannot remain suspended after the CA has issued a TRO. (Lawyers on Junjun Binay TRO: DILG got it wrong)
Advice for Binay camp
De Lima, meanwhile, has an advice for the Binay camp.
The “only remedy” now for Binay is to amend his petition to include the issuance of a preliminary mandatory injunction in his prayer, De Lima said.
Since the TRO issued by the CA is not a preliminary mandatory injunction but only a temporary one, De Lima said it cannot apply to acts already accomplished.
A mandatory injunction can only be issued by the court upon notice and hearing. Hearings on the legality of Binay’s preventive suspension will be held on March 30 and 31.
For De Lima, Makati Vice Mayor Peña may continue his duties as acting mayor since he has already taken his oath and is not bound by the TRO.
The justice secretary refused to give her judgement on the issue of whether the CA has the power to issue injunctions against the Ombudsman since it may involve the merits of the case. The Ombudsman may, however, raise the issue with the Office of the Solicitor General, De Lima said.
The Ombudsman ordered the preventive suspension of Binay over the case involving a contract for the allegedly overpriced Makati City Hall Building II, which was built in 5 phases.
The complaints stem from a P11.97-million contract covering the design and architectural services for the carpark building. These were allegedly not publicly bid out as required by law.
Binay’s legal counsel argues that the mayor may not be suspended since the project started when he was not yet mayor of Makati. Only the last 3 phases were built during his term.
Assistant Ombudsman Asryman Rafanan denied accusations that Binay’s suspension was expedited, saying that there was no undue haste in the decision. – Rappler.com