SC partly to blame for confusion on Binay’s suspension

Aries C. Rufo

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SC partly to blame for confusion on Binay’s suspension
The Supreme Court has issued conflicting rulings on whether or not the Court of Appeals can stop an Ombudsman order

MANILA, Philippines – Is the Ombudsman’s suspension of Makati Mayor Jejomar “Junjun” Binay an act of grave abuse of discretion as his camp claims?

Or was it the Court of Appeals (CA) that committed abuse of discretion when it stopped the Ombudsman’s order?

It appears that the Supreme Court (SC) is partly to blame for the confusion.

On March 10, the Ombudsman issued a 6-month preventive suspension without pay against Binay for the administrative cases of grave misconduct, dishonesty and conduct prejudicial to the service in connection with the allegedly overpriced Makati City Hall parking building. The Ombudsman announced his suspension the next day. 

At around 10 am of March 16, the Department of the Interior and Local Government served the suspension order and swore in Vice Mayor Romula Peña Jr as acting mayor.

Over an hour later, the CA issued its TRO on the Ombudsman’s suspension order.

The younger Binay, son of Vice President Jejomar “Jojo”Binay, is using the CA’s TRO as basis for his continued stay in office.

The Ombudsman and the Department of Justice however argued that the suspension order issued against Binay ahead of the CA order already rendered the TRO moot and academic.

Binay stood his ground.

On March 20, he asked the CA to cite in contempt Ombudsman Conchita Carpio-Morales and Justice Secretary Leila de Lima for refusing to honor the TRO. 

The argument on which order came first overlooks relevant issues on the case.

Stop the TROs

A CA source said that the appellate court has been exercising prudence in granting TROs especially after the SC issued guidelines for it.

In 1999, in response to complaints on the abuse of TROs issued by lower courts, the High Court issued an administrative circular governing the issuance of TROs.

The SC reiterated this reminder in 2003 after noting that the abuse persisted and despite the fact that some judges had already been administratively sanctioned because of it.

In its 2003 circular, the Court reminded judges that they cannot restrain the Ombusdman in its investigations based on Section 14 of Republic Act 6770. The section states: “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.”

The SC, however, said that a TRO may be necessary in cases when: 

  1. the injunction is necessary to afford adequate protection to the constitutional rights of the accused
  2. it is necessary for the orderly administration of justice
  3. there is a prejudicial question
  4. the acts of the officer are without or in excess of authority
  5. the prosecution is under an invalid law
  6. double jeopardy is clearly apparent
  7. the Court has no jurisdiction over the offense
  8. it is a case of persecution rather than prosecution
  9. the charges are manifestly false and motivated by vengeance
  10. there is no clear prima facie evidence

These exemptions were laid out in a 2000 ruling of the SC.

Confusing rulings

In its order suspending Binay, the Ombudsman pointed out that the mayor’s  continued stay in office pending the investigation “may prejudice the case against him” since he continues to have access to public documents and may influence possible witnesses.

The Ombudsman stressed that the suspension order is “immediately executory” and “shall not be interrupted within the period prescribed” by any motion, appeal or petition that may be filed by the respondents.

In his urgent appeal for a TRO, Binay accused the Ombudsman of grave abuse of discretion “amounting to lack or in excess of jurisdiction” as the charges against him were based on transactions that occurred when he was still not a mayor. The Makati parking building project began during the last term of his father, although other phases for the project were undertaken when the younger Binay assumed office in 2010.

Even granting that alleged illegal acts occurred during his term, Binay said, the 1992 SC’s ruling in Aguinaldo v. Santos supports his case. In that verdict, the Court reiterated its previous rulings that the reelection of a public official in effect absolves him of his previous acts. Binay was reelected mayor in 2013.

In granting the TRO, the CA 6th division, citing previous rulings of the SC, said that the injunction is justified “as a provisional remedy that a party may invoke in order to protect and preserve certain rights and interests during the pendency of an action.”

The CA referred to the SC’s ruling in Barbieto v CA, where Major General Jose Barbieto contested the preventive suspension order issued against him by the Deputy Ombudsman for the military. “Its purpose is to ensure the protection of the party’s substantive rights or interests pending the final judgment in the principal action so as not to render useless the outcome of litigation,” the CA said.

The appellate’s 6th division also cited the 2009 Garcia v CA ruling, where the SC faulted the CA for failing to issue a TRO despite the urgency of the issues raised in the case. 

This involved then Bataan governor Enrique Garcia who was slapped with a preventive suspension order by the Ombudsman. The SC Third Division ruled then that the suspension of a public official “whether as a preventive measure or a penalty, will undeservedly deprive the electorate of the services of the person they have conscientiously chosen and voted into office.”

Revised stand

A closer look, however, shows that the CA’s specific basis for its ruling on the Binay case may have been misplaced, if not outdated.

For instance, in the Barbieto v. CA case, the SC refrained from commenting on the TRO sought by the military officer as the suspension issued against him by the Ombudsman had already lapsed. “Any ruling by this Court, whether affirming or reversing the denial by the appellate court of Maj. Gen. Barbieto’s prayer for issuance of a TRO and/or writ of preliminary injunction to enjoin the implementation of said preventive suspension order, will no longer serve any practical purpose, because the act sought to be enjoined has long been consummate,” the SC said.

And while previous rulings of the Supreme Court indeed sustained TROs issued by the CA on suspension orders against public officials, the High Court revised this thinking in its recent decisions.

In a 2010 en banc decision on Ombudsman v Samaniego case penned by dismissed Chief Justice Renato Corona, the Court reversed itself and ruled that the Ombudsman’s power to suspend is encompassing and that not even the CA can stop its implementation.

In this ruling, the SC said that Section 7, Rule III of the Rules of Procedure of the Ombudsman, which states that “an appeal shall not stop the decision from being executory,” reigns supreme over Section 12, Rule 43 of the Rules of Court, which grants the CA the power to stay a judgment or decision on appeal.

“The provision in the Rules of Procedure of the Office of the Ombudsman that a decision is immediately executory is a special rule that prevails over the provisions of the Rules of Court. Specialis derogat generali. When two rules apply to a particular case, that which was specially designed for the said case must prevail over the other,” the Court said.

The SC’s 2nd division further strengthened this new ruling in the Tuason v CA case that was decided in 2011.

In this ruling the SC said that a CA injunction “that will stay the penalty imposed by the Ombudsman in an administrative case would be to encroach on the rule-making powers of the Ombudsman…”

But in this ruling, the SC sought to absolve the CA for its encroachment, admitting that the High Tribunal has been inconsistent on this issue in its past decisions.

“The CA however cannot be faulted for so ruling because at that time the Court’s ruling was not definite and thus nebulous. There were no clear-cut guidelines yet,” citing as an example its flip-flopping position on the Samaniego case. –

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