Is it game over for Gwen Garcia after Ombudsman's dismissal order?

MANILA, Philippines – Not only did Ombudsman Conchita Carpio Morales dismiss from service Cebu 3rd District Representative Gwendolyn Garcia, she also barred her from holding any future public office.

Garcia said she will avail of all legal remedies, including the Aguinaldo or condonation doctrine, which she cited in several interviews. If she goes to the Court of Appeals (CA), there are precedents she may be able to use too. 

Tough challenges lie ahead, however, including her eligibility to run in 2019.

Remember that Garcia holed herself up at the Cebu capitol and refused to leave when she was suspended as governor in 2012. She is no stranger to fights.

An independent House

Garcia, who rose to prominence in the Duterte administration as the House’s straight-talking deputy speaker, now enjoys the protection of the lower chamber’s "independence".

House Speaker Pantaleon Alvarez insists that only the House can discipline its members and that he will "definitely not" dismiss his deputy based on this:

SECTION 16 (3), Article VI of the Constitution

Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member.

"Not an order of the Ombudsman, but by two-thirds vote of all the members of this independent House of Representatives," Garcia said in a privilege speech on Wednesday, February 14.

This follows the precedent of the Senate, which also refused to dismiss Senator Joel Villanueva, despite an order from Morales to sack him over the pork barrel scam.

Article XI of the Constitution, however, specifies under Accountability of Public Officers, that the Ombudsman may: "Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith."

Going by this provision, the power could be interpreted as being purely recommendatory.

The answer to whether or not the House can ignore the dismissal order lies in the Senate: Villanueva is still a sitting senator.

However, there is a major difference between Villanueva and Garcia, and that is timing.

The dismissal order against Villanueva came in November 2016, only months after he was elected, with his 6-year-term ahead of him.

Garcia’s term ends next year, and the filing of certificates of candidacy (COC) for whatever post is already this October.

Can the Comelec stop her from running?

In a radio interview, Garcia linked the dismissal order to her rivals in Cebu, where she served 3 terms as governor. She is taking the dismissal order as a dare.

"Now that the Ombudsman has come up with this very shocking ruling really intending to take me out of the race, I am really having serious thoughts [about] running as governor," Garcia told GMA’s Super Radyo dzBB. (READ: Garcia questions 'timing' of dismissal: Ombudsman 'singled me out')

As Morales has said in her decision, and pursuant to Section 52 of the revised rules on administrative cases in the civil service, a dismissal carries with it “perpetual disqualification from holding public office.”

Can the Commission on Elections (Comelec) stop her from running? It’s a gray area, said election lawyer Emil Marañon III.

“If Gwen Garcia files a COC for the 2019 elections, her candidacy can be questioned by a Petition for Disqualification, or alternatively, a Petition to Deny Course,” Marañon said.

Marañon added: “But we have to note that for those grounds to be valid, the dismissal order has to be final and executory.”

The Ombudsman’s orders are always executory, even if they are appealed. That’s under Rule 3, Section 7 of their Rules of Procedure.

Executory, however, is different from being final. The dismissal order against Garcia is not final. She can appeal.

“Comelec has to be careful, as while executory, the decision is not yet final. There is still the possibility of reversal. So once the candidate is excluded from the printed ballot, the exclusion is irreversible, even if the Ombudsman is reversed,” Marañon said.

Condonation doctrine

The condonation doctrine says a reelected official should no longer be made accountable for an administrative offense committed during his previous term.

The doctrine had worked for Garcia once before.

To recall: then Cebu governor Garcia bought the so-called Balili property in 2008. When it was discovered that parts of the property were under water, complaints were filed against her.

She was charged for graft in 2012, and then dismissed by the Ombudsman in 2013.

But between those years, in 2010, she was reelected governor of Cebu.

In 2014, the Court of Appeals overturned the Ombudsman’s dismissal order because of the condonation doctrine. Justice Gabriel Ingles said the Ombudsman  acted “whimsically, capriciously and arbitrarily” in charging Garcia despite her being reelected governor in 2010. Following the doctrine, her supposed lapses were taken to have been condoned. 

Here’s the thing. In November 2015, the Supreme Court abandoned that doctrine to stop it from being abused by erring public officials. Associate Justice Estela Perlas-Bernabe’s ruling, however, says the abandonment of the doctrine is prospective, meaning, it can be used only after the ruling.

Now, Garcia is being dismissed for the alleged lack of authority to hire a contractor in 2012 to refill the submerged parts of the Balili property.

In the same radio interview, Garcia argued that the condonation doctrine still covers the refilling case because the questioned contract was entered into in 2012, and the complaint against her was filed in 2013, long before the abandonment of the doctrine in November 2015.

In 2013, from governor of Cebu, she was elected congresswoman of the 3rd district of Cebu.

So, where do we begin the count? A Court of Appeals ruling says the count begins from when the complaint was filed.

In a December 15, 2017 ruling by the Court of Appeals on the case of Camarines Norte Governor EdgardoTallado, the former special 12th Division said that if the complaint was filed before the abandonment, it will still apply.

Here’s the significant part of that ruling:

Here, the instant Complaint was filed by Banal before the Ombudsman on November 14, 2014 for acts allegedly committed by petitioner constituting Disgraceful and Immoral Conduct. The Supreme Court Decision abandoning the condonation doctrine prospectively was issued on November 10, 2015. As it stands, the condonation doctrine was "good law" when Banal's complaint was commenced on November 14, 2014.

But note, however, that Garcia was not technically "reelected" in 2013. She was elected to a congressional post, to the 3rd District, with a smaller constituency compared to a governorship.

Garcia said there’s no difference.

“Last 2013 elections, I got elected, this time as congresswoman by the same constituency that had elected me as governor but on a smaller scale. This act was committed prior to my election and I was again – by the same doctrine – exonerated by the same constituency," Garcia said.

Garcia said on Wednesday, February 14: “I will not today discuss the merits of the case against me. That is for another day, before another forum.”

She instead drilled on the power of the House of Representatives over the Ombudsman. 

After all, she has more than a year to serve under the jurisdiction of the House. But what happens in May 2019 when that cloak of protection is removed? 

Does Gwen Garcia still have it in her to fight? – with reports from Bea Cupin/Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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