Supreme Court stent

One of the most consequential cases pending before the Supreme Court today involves a fundamental question: Is the government, as reconstituted by the 1987 Constitution, serious about the campaign against corruption? In the same way that the Supreme Court itself was reinvented in a direct response to the Marcos dictatorship’s cooptation of the judiciary (hence, the virtual death of the old “political question” doctrine), the office of the Ombudsman was also reimagined, in a direct response to the Marcoses’ culture of corruption. The intervention by the Court of Appeals in the graft case against Makati Mayor Jejomar Binay, which first issued a temporary restraining order and then a writ of preliminary injunction, puts the Ombudsman in the dock, and brings that fundamental question to the fore.

Is the government—and the judiciary in particular—serious about fighting corruption?

We note that Ombudsman Conchita Carpio Morales’ original resolution was only to impose a temporary suspension order on Binay—not a final determination of guilt, but rather a preventive measure to aid in the investigation. The jurisprudence on preventive suspension orders is uniform and clear: They are not a punishment, but a mere preliminary step in an administrative proceeding.

We do not wish to belabor why Binay remains unwilling to acquiesce in that process, despite using his pending case before the Ombudsman as his excuse for not taking part in the Senate hearings on the controversial and  allegedly overpriced Makati City Hall Building 2. When that case turned against him, and the Ombudsman imposed the preventive measure, he ran to the Court of  Appeals. But in fact, the case now pending before the Supreme Court—Carpio Morales vs Court of Appeals—is bigger than Binay.

It goes to the heart of the anticorruption character of the Constitution, and it asks whether the Court of  Appeals is an artery that pumps life into the clean-government ideal, or an arterial plaque which requires nothing less than a Supreme Court stent.

The Ombudsman’s petition for certiorari and prohibition filed against the sixth division of the Court of Appeals  assails the appellate court for grave abuse of discretion; the argument is simple, straightforward and explicit in the Constitution. Article XI gives the Ombudsman the power to recommend the “removal, suspension, demotion, fine, censure or prosecution” of “any public official or employee.” Republic Act No. 6770, the law organizing the office of the Ombudsman, not only borrows the language of the Constitution; it also explicitly provides, in Section 14, that “[n]o writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman … unless there is a prima facie evidence that the subject matter of the investigation is outside [its] jurisdiction.” Further: “No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure questions of law.”

Despite these clear provisions, the Court of Appeals intervened in the Binay case not just once but twice. The intervention was “patently illegal as it directly contravenes”  Section 14, acting Solicitor General Florin Hilbay argued last week. Also, intervening in the case was a grave abuse of discretion, “because in doing so, [the Court of Appeals]  acted without jurisdiction.”

One counterargument raised in the oral arguments was the supposed conflict between Batas Pambansa No. 129, the Judiciary Reorganization Act of 1980, as amended, which revamped the Court of Appeals, and Section 14 of RA 6770. This is a misreading not only of the statutes but of history itself. There is an intervening factor between  BP 129 and RA 6770—nothing less than the post-Marcos Constitution itself. Any conflict must therefore be resolved in favor of the defining thrusts of that Constitution. The fight against corruption is one of those thrusts; hence, the much-expanded powers given to the Ombudsman.

The reliance of the Court of Appeals’ sixth division on an old understanding of its so-called Rule 65 powers is a throwback to the Marcos era. By giving way to Binay’s plea to cite the Ombudsman for contempt, the division even embarrassingly forgot that in the 1987 Constitution, the Ombudsman is classified as an impeachable official who cannot face a criminal case, such as a contempt proceeding while in office. Time for the Supreme Court to perform heart surgery.