Ombudsman not liable in Makati contempt case – Miriam

MANILA, Philippines – The Ombudsman and other officials did not err in immediately implementing the suspension order against Makati Mayor Jejomar Erwin “Junjun” Binay, Senator Miriam Defensor Santiago said on Wednesday, March 25.

The former trial court judge and constitutional law expert cited a Supreme Court (SC) ruling that said the Ombudsman can order the immediate execution of a preventive suspension against an elected official.

Her comments were a reaction to the petition for contempt filed by Binay against Ombudsman Conchita Carpio-Morales and officials of the Department of the Interior and Local Government (DILG) for refusing to honor the temporary restraining order (TRO) issued by the Court of Appeals (CA) stopping Binay’s suspension.

Last March 11, the Ombudsman ordered the 6-month preventive suspension of Binay and other Makati City officials over allegations of irregularities related to a contract for the construction of a city hall building.

The DILG enforced the suspension order in the morning of March 16. Binay, however, obtained the TRO around noon.

His camp later filed a petition for contempt after the DILG and the Ombudsman maintained that his suspension was still valid.

But Santiago said that the Ombudsman and her co-respondents in the contempt petition are not liable under the ruling of the Supreme Court in the 2008 case of Gobenciong v. Court of Appeals.

The High Court ruled: “The Office of the Ombudsman can, as a matter of statutory empowerment, validly order the immediate execution of a preventive suspension after determining the propriety of the imposition, regardless of the remedy of reconsideration made available under the law to the suspended respondent.”

“Thus, the Ombudsman can order the immediate suspension of a sitting mayor, who is not allowed to plead that he needs time to file a motion for reconsideration,” Santiago said.

She added that the SC also rejected the argument that the sitting official was denied due process because of the immediate implementation of the suspension.

In his earlier petition for a TRO, Binay said the Office of the Ombudsman acted with grave abuse of discretion when it ordered his preventive suspension even if the evidence of guilt against him is not strong.

The Ombudsman told Rappler, however, that the evidence of Binay’s guilt was strong.

Preventive suspension

But according to Santiago, the SC held in the Gobenciong case that there was no legal basis for the argument that the immediate implementation of the preventive suspenion would deny due process.

“In fact, the Supreme Court added that since preventive suspension is not a penalty for an administrative offense, preventive suspension can be imposed without prior hearing,” Santiago said.

In the Gobenciong case, the High Court also denied the motion to cite the Ombudsman in contempt, saying that it had “become moot and academic, for the preventive suspension had been served.”

Under the same ruling, the Ombudsman also cannot be held in indirect contempt because there is no “disobedience of or resistance to a lawful writ of a court” under the Rules of Court.

“A contempt order usually arises according to the Rules of Court for ‘any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.’ It is not the case,” the senator said.

But Santiago also raised the 2011 case of Strategic Alliance Development Corp. v. Star Infrastructure Development Corp.

In the 2011 case, the SC ruled: “Although the general rule is to the effect that a writ of preliminary injunction cannot be issued against acts already fait accompli it has been held, however, that consummated acts which are continuing in nature may still be enjoined by the courts.”

Santiago said this “apparent collision” between the two cases must be resolved by the Court of Appeals.

Sources at the Court of Appeals however pointed out that the conflicting rulings of the SC have contributed to the confusion surrounding the Junjun Binay suspension. Even former Commission on Election chief Sixto Brillantes said the TRO sought by the embattled Makati mayor must be upheld, pointing out that Makati Vice Mayor Romulo Peña should have immediately assumed office after he took his oath. – Rappler.com