Ombudsman argues Junjun Binay’s TRO clearly invalid

By luck of the draw, the Ombudsman’s case against Makati Mayor Junjun Binay was assigned to Justice Francis Jardeleza, setting a high-profile stage for the appearance of Acting Solicitor General Florin Hilbay before his predecessor and mentor. Their casual “good afternoons” at last April 14’s hearing belied the moment’s significance.

The Ombudsman Act’s Section 14 reads: “No writ of injunction shall be issued by any court to delay an investigation … unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.” The Ombudsman asserts that the Court of Appeals’ restraining order stopping Binay’s preventive suspension as part of the Ombudsman’s investigation of an allegedly overpriced parking building is thus invalid. Hilbay outlined that court jurisdiction is delineated by law. Here, Congress stripped courts of jurisdiction to issue injunctions or restraining orders against Ombudsman investigations, including Binay’s. Congress previously prohibited injunctions against national infrastructure projects and Hilbay argued this is now uncontroversial. The exception is that Section 14 cannot apply to the Supreme Court because the Constitution governs its jurisdiction, and a mere law cannot modify this. It would be surprising if the Court rejected this as a starting point.

Jardeleza’s questions were numerous but fairly simple. Going through the counterarguments, he curiously asked whether the right to equal protection restricts Congress’ authority to set court jurisdiction, as a mayor suspended by the Ombudsman is unable to seek an injunction, unlike a mayor suspended by another authority. Hilbay brilliantly answered that equal protection is a human right and Hilbay politely signaled that Jardeleza’s scenario is an idiotic misapplication because it does not involve human rights contexts such as gender, racial or religious discrimination.

Sadly, the high court has allowed such misapplication before. Despite the lack of human rights context, it struck down the Truth Commission formed to investigate the preceding Arroyo administration because it would not investigate other administrations.

Hilbay unfortunately had difficulty getting his point across. After going through all the procedures for court review of the Ombudsman’s actions with Justices Presbitero Velasco and Lucas Bersamin, Hilbay was asked again by a confused Jardeleza whether the high court could issue an injunction. Hilbay had to repeat his position that lower courts generally cannot issue injunctions against the Ombudsman’s investigations because of Section 14, while the high court may because its jurisdiction is set in the Constitution.

Justices Jose Perez and Bersamin asked him about injunctions that do not delay an investigation, and Hilbay answered that an injunction would by definition cause delay. This seemed to be unfortunate phrasing for which even Jardeleza sought clarification.

Senior Associate Justice Antonio Carpio reinforced the framework by pointing out that no questions on interpreting the Constitution were raised by the mayor before the Court of Appeals or the high court. Thus, the debate is limited to Congress’ power to set court jurisdiction, as Hilbay frames, and philosophical discussions of “judicial review” in the Constitution are irrelevant. Hilbay succintly reiterated to Perez that Congress can abolish a lower court and prevent it from exercising all judicial power in that way.

Hilbay learned, however, to decline Carpio’s lead at his peril. Carpio posited that the Ombudsman’s power to suspend is a constitutional power and cannot be blocked by ordinary law. Hilbay noted that the actual provision allows the Ombudsman to merely recommend suspension. Carpio stated that the Court had interpreted this more strongly and challenged, “You read or you want to reverse us?” to much laughter. Carpio laughed along and told Hilbay to “believe me, we already ruled” in his client’s favor in interpreting that provision.

Chief Justice Maria Lourdes Sereno proposed discarding the doctrine of “condonation,” the mayor’s likely defense. Under this doctrine, administrative (but not criminal) cases against an elected official are extinguished and deemed condoned by the electorate if they reelect him. Hilbay cautioned that the Court of Appeals should not even have jurisdiction to consider the mayor’s defenses given Section 14, and added that some allegations related to his current term could not have been condoned. Sereno discussed how the foreign cases on which the doctrine was initially based decades ago turned out to be poor foundations, with some reversed because a law prohibiting condonation was passed. Further, she argued, it is bad policy to allow impunity for elective officials under the doctrine of condonation but not for appointed officials, given the 1987 Constitution’s emphasis on accountability. Finally, she suggested that the Ombudsman is an independent body and there should be no issue of using suspensions against political opponents.

Rejecting Hilbay’s framework, some justices will argue that it must be inherent in a judge’s power in certain contexts to issue injunctions—an injunction against a preventive suspension does not necessarily delay an Ombudsman investigation; or that it should be clear when the doctrine of condonation applies to a case and an injunction should stop the Ombudsman from investigating a condoned offense. Stay tuned for the next hearing on April 21 for Binay’s rebuttal.

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