How can CA issue that writ of injunction?
The Binays—Vice President Jejomar Binay and Makati Mayor Junjun Binay—refused to cooperate with the Senate blue ribbon subcommittee headed by Sen. Koko Pimentel. The reason? There are already charges filed in the Office of the Ombudsman, so let justice take its course.
Well, here is the Office of the Ombudsman, which, after eight months of work by special panels of investigators, orders the preventive suspension of Mayor Binay and others. Do the Binays accept the Ombudsman ruling? Of course not. Then, should not the conclusion be that they don’t want justice to take its course?
The Court of Appeals (CA) rules that the Ombudsman’s actions constituted “grave abuse of discretion”—a term that has lost its meaning, just as “due process” has. The use of these terms, in my opinion, is what has been gravely abused. So the Ombudsman seeks relief from the Supreme Court, which will hear the case on April 14. Remember, Reader, these maneuverings don’t have anything to do with whether the charges against Binay et al. have merit.
I’ve read the documents leading to the resolutions of the CA (6th Division) and those submitted to the Supreme Court, and I believe, Reader, that the arguments of the Ombudsman are far superior to the arguments of the Binay camp. Yet, the CA found in favor of the Binays. And if the “advisory” of the high court (which lists the questions that both parties must answer in the hearing) is any indication, it looks like the high court will also favor the Binays. Don’t get me wrong. Although I expect the worst, I still hope for the best.
The documents are a couple of inches thick, and if anyone wants to see them, I will oblige. But I am tired of the legal skirmishes, and will try to go to the heart of the issue: Is the institutionally independent Office of the Ombudsman going to have its wings clipped by the Court of Appeals, which may allow the Binays to get off scot-free, or fatally impede the case against them?
Let me say at the outset that I don’t agree with Sen. Antonio Trillanes’ assertion that the CA decision was tainted by money changing hands. It is true that the CA’s reputation is not of the cleanest, but the ponente of this decision, Justice Jose C. Reyes Jr., I am told, is one of the good apples in the barrel (he is called “Bishop”), and so is Justice Eduardo B. Peralta (his reputation is that if he is approached regarding a case, he either recuses himself or decides against the approacher).
But then money is not the only persuader. The promise of an appointment in the Supreme Court can be persuasive—and the next president will have nine justices to appoint. Were promises made? Unfortunately, we won’t know until after 2016.
Now, let’s refresh our memory. The Office of the Ombudsman was created by the Constitutional Commission of 1986 to replace the Tanodbayan of the 1973 Constitution, which was demoted to “Office of the Special Prosecutor.” It is tasked to investigate public officials and employees—i.e., the guardian of the guardians—and is given a wide array of powers, functions and duties, as well as independence. The ombudsman is appointed for seven years, removable only by impeachment, and the Office of the Ombudsman has fiscal autonomy (Sections 12 to 14 of
Article XI).
Suffice it to say that it has the power to investigate, on its own, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. A broad power, given because corruption has run rampant in the Philippines since time immemorial, and this was the framers’ way of trying to stop it.
Republic Act No. 6770 (The Ombudsman Act), passed in 1989, provides the legal clothing. Let me quote Sections 24 and 14.
“Section 24. Preventive Suspension.—The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and
(a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
(b) the charges would warrant removal from the service; or
(c) the respondent’s continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay…”
Note that it is the judgment of the Ombudsman that counts, and nobody else’s. And clearly, (a), (b), and (c) are fulfilled in the Binay
- al. case.
“Section 14. Restrictions.—No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. 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.”
What is so difficult to understand about Section 14? And yet the CA has seen fit to issue a writ of injunction. How can the charges filed against Binay et. al. be outside the jurisdiction of the Ombudsman? Isn’t it clear that only the Supreme Court can be involved?
If the CA’s action is upheld, it is bye-bye to the Ombudsman and the fight against corruption.
I may not be a lawyer, but I understand English. Lawyers can complicate things to such a degree that the real issues are obfuscated.
