Ombudsman vs Makati mayor

I am glad the Supreme Court is speeding up the legal proceedings involving the suspension of Makati Mayor Jejomar Erwin S. Binay Jr. by Ombudsman Conchita Carpio Morales.

New procedure. Aside from immediately setting the oral argument at 2 p.m. this Tuesday in Baguio City, the Court also abbreviated the process by requiring the parties to file at noon tomorrow a position paper not exceeding 30 pages, backed by a “table of authorities.”

The hearing will therefore begin, no longer with the usual oral presentations of the lawyers, but with the justices’ interpellation, first, of Morales’ counsel, and then, of Binay’s.

This new, unprecedented procedure is clearly a reform measure aimed at speeding up the proceedings. Obviously, the justices would study in advance the parties’ position papers, and would just ask questions to clarify, test and validate them.

This novel procedure signals the justices’ laudable determination to resolve speedily the rather embarrassing chaos of having two bickering mayors in the nation’s financial capital.

Facts and issues. To be fair and objective in this sub judice case that will probably split the Court, I will just summarize the relevant facts, main issues and arguments raised by the parties.

On March 5, 2015, a special panel of investigators submitted a complaint with Morales, alleging that Binay and several others violated the Anti-Graft Law in the construction of the Makati City Hall Parking Building. Morales directed Binay to file his counteraffidavit.

On March 10, 2015, without waiting for the counteraffidavit, Morales issued a suspension order placing Binay and 20 others under “preventive suspension” for not more than six months.

This order was implemented by the Department of Interior and Local Government at 8:30 a.m. on March 16 by posting it on the wall of the Makati City Hall “given that all the gates of the Makati City Hall were closed…” At 9:47 a.m. of the same day, Vice Mayor Romulo V. Peña took his oath as acting mayor.

Acting on Binay’s petition for certiorari filed on March 11, the Court of Appeals (CA) issued a resolution at “around noon” on March 16 “to grant petitioner’s prayer for a temporary restraining order (TRO) for a period of sixty days…”

Morales filed a “manifestation” in the CA that, given the prior service and implementation of the suspension order, “there is … no more act to be restrained by the TRO as it has become moot and academic.” She said the TRO was textually vague as to what specifically it restrained.

Thereafter, Binay petitioned the CA to hold Morales in contempt for her refusal to obey the TRO. In response, the CA directed Morales to comment thereon within three days. On March 25, Morales asked the Supreme Court to annul the CA’s TRO (restraining her suspension order) and to stop the CA from adjudicating Binay’s petition for contempt.

Arguments pro and con. Morales argues that the Constitution (Art. XI, Sec. 13) mandates her “to investigate… any act or omission [that] appears to be illegal, unjust, improper or inefficient.”

Further, Sec. 14 of the Ombudsman Law states: “No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman…” She explains that Binay’s suspension is an essential part of her investigation and that the CA’s TRO illegally “delays” such investigation.

Citing settled jurisprudence, she says that a suspension is not a penalty but merely an “aid to investigation…” to prevent Binay from “using the powers and prerogatives of his office to influence potential witnesses… Practically all the documentary evidence … are in the custody of the city government, in the same way that potential witnesses—whether friendly or adverse—are currently in the city’s employ. There is, therefore, an imperative need to guard such evidence and witnesses against possible tampering and intimidation.”

Morales also contends that as a public officer removable only by impeachment, she cannot be held in contempt because the penalties for contempt are fine and imprisonment, which are criminal in nature; impeachable officers are criminally liable only after serving their terms.

In his “comment,” Binay avers that Morales’ power to investigate and suspend is not absolute; it is subject to the constitutional duty of courts to strike down grave abuse of discretion of any government agency. He adds that Morales gravely abused her discretion in issuing the suspension order because, by merely looking at the complaint filed by the special panel of investigators, she would have known that the irregular acts alleged against him “were done prior to his incumbent term.”

Citing past cases, Binay posits that “a public official cannot be removed for administrative misconduct committed during a prior term; his reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.”

Contrary to Morales’ stance that the payments made during his present term were culpable, he argues that they were mere implementations of the building contract entered into during his prior term, which had been condoned by the electorate.

On the contempt issue, Binay maintains that impeachable officials may be held liable, per Philippine Guardians vs Comelec (March 22, 2011), which ruled that the Commission on Elections (composed of impeachable officials) was guilty of contempt for failing to comply with a status quo order.

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