Double standards

A strange news item was carried by the Inquirer last Wednesday, titled “Ombudsman upholds condonation doctrine.” It concerns the case of the ex-mayor of Muntinlupa in which the Office of the Ombudsman affirms the very same doctrine it swiftly rejected when it was invoked by Makati Mayor Junjun Binay.

Stranger still, the Ombudsman announced it with a poker face, as it were, as though forgetting its own principled position at the Supreme Court just a month ago. And strangest of all, there seems no wonderment, no outrage, among the usual guardians of morality, they who had waxed poetic about the evils of the condonation doctrine. What gives?

The Ombudsman’s press release spoke of a run-of-the mill case of graft and corruption. In 2008, Aldrin San Pedro, then mayor of Muntinlupa, and associates unlawfully awarded a P20-million contract based on fabricated documents. No public bidding, no prequalification, no permits or licenses, no public announcement, and—surprise—the “winning bidder” was the sole bidder. To top it all, the documents sealed inside the “bid envelope” were notarized one month after the envelope was opened! Egregious, almost comical, but par for the crooked course.

What is not routine was the Ombudsman’s ruling that, while all of them were to be charged criminally for graft and San Pedro’s cohorts were all dismissed from the service, “[a]s for San Pedro, his administrative liability was rendered moot and academic, owing to his reelection in the same position in 2010 ….”

Wasn’t this precisely the condonation doctrine that the Ombudsman said was bad law and bad policy? How can it plausibly reconcile its opposing positions?

Even worse, the condonation doctrine is actually superfluous in this case. San Pedro is no longer mayor, so how can he be suspended from a position he longer holds? There’s no need to say that he committed his offense during his first term in 2007-10, and “owing to his reelection in the same position in 2010,” he can no longer be administratively punished. Why go out on a doctrinal limb, when one can stay safely on solid ground? (One possibility is that the Ombudsman could still have punished him in other ways, like perpetual disqualification from public office or forfeiture of retirement benefits, but didn’t want to.)

The Office of the Ombudsman sends mixed messages and undermines its position at the Supreme Court. It shows double standards and selective application of rules, one rule for Mayor Binay and another for San Pedro. It exposes the political use of erstwhile neutral laws, or what the high court itself has referred to as “dress[ing up] pretense” and “disguis[ing politics] more or less artfully in the habiliments of [law].”

It bolsters the legal position of Mayor Binay, whose lawyers have invoked the high court’s own logic just like the Ombudsman now. If the condonation theory has survived this long, that’s because it rests upon the settled doctrine that administrative liability, or the power of government to punish its officers and staff, is limited to the employment relationship. That is why the penalties range from reprimand, suspension, forfeiture of benefits and eligibilities and, gravest of all, dismissal from office. That relationship exists only for the term of office. When an old term ends, all liabilities arising during that term ends with it. In contrast, if the same acts likewise amount to a crime (as in corruption cases), the criminal liability remains and outlives the term of office.

Finally, the Ombudsman’s position in the San Pedro case shows the policy reasons underlying the condonation rule. The high court has exposed why the condonation theory is bad policy: It allows legal liability to be erased politically, creates an illicit incentive for politicians to win elections, and needlessly ups the ante in political contests. But the Ombudsman now shows us why condonation makes good policy. It is dangerous to put the power to suspend in the hands of a politically motivated ombudsman or prosecutor. In criminal cases, the power to punish is vested in a judge who is institutionally insulated, however incompletely, from politics. But in administrative cases, there is no countervailing power to check the ombudsman’s power to suspend local government officials. It can be used for political vendetta or mine-clearing operations.

This affirmation of the condonation doctrine exposes a deeper problem. The rule of law is weakened when the law is manipulated for episodic advantage and forgotten when it is no longer of use. Certainly, what is sauce for the Muntinlupa goose should be sauce for the Makati gander, too. The high court should ask the Ombudsman why it thinks otherwise.