TRO on Binay suspension: merits over technicalities

THERE are conflicting opinions regarding the enforceability of the temporary restraining order that the Court of Appeals issued on March 16, stopping the Office of the Ombudsman’s order suspending Makati Mayor Jejomar Erwin Binay Jr. from office. Let me add my two cents’ worth on the issue.

Both Ombudsman Conchita Carpio Morales and Justice Secretary Leila de Lima separately opine that the TRO became moot and academic after Makati Vice Mayor Romulo Peña Jr. took his oath of office as acting mayor a couple of hours before the TRO was served on Binay. In prosaic sense, according to the two officials, there was nothing more to restrain after Peña took his oath of office.

A side issue was raised on whether the suspension order was validly served when it was posted at the entrance door of the Makati City Hall instead of being “personally” served on Binay. In a sense, the issue here is whether or not the posting of the order can qualify as a valid substitute service under Section 8, Rule 13 of the Rules of Court. In any case, I will not dwell on this side issue but on the main issue.

I beg to differ from the opinion of the two esteemed public officials. The TRO is perfectly binding, especially in the light of Peña’s admission (as media reported) to the effect that after he took his oath as acting mayor, he has initially deferred from actually assuming the mayoralty office upon learning of the existence of the TRO. In fine, until the TRO was served, Peña had not performed yet any overt act of governance such as signing an official document (except of course his oath of office) that would render the TRO “moot and academic.”

Notably, a TRO is issued precisely in order not to render the issues raised in the main petition for preliminary injunction moot and academic. Whether or not described in the order as status quo ante, a TRO has the object of enjoining the parties from observing the prevailing status quo before the filing of the petition for preliminary injunction or similar main petition.

At all events, it is a well-settled policy and jurisprudence that provisions of the Rules of Court should be applied with reason and liberality to promote its objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are used to help secure and not override substantial justice.

Thus, to paraphrase the Supreme Court in the case of Office of the Ombudsman vs Pendatun G. Laja and the Court of Appeals (G.R. No. 169241, May 2, 2006), the TRO “tardily served” must be allowed to get at the substantive issues raised by both parties, consistent with the Court’s inherent power to suspend the application of procedural rules when warranted in relation to the dictum that all controversies should be resolved on their merits (rather than on pure technicality).

—DIOSDADO V. CALONGE,

dvccalo@yahoo.com