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Sisyphus’ Lament

Ombudsman ‘pwned’ in SC decision on Binay

/ 12:10 AM November 23, 2015

SINGAPORE—The Supreme Court (SC) decision on Makati Mayor Junjun Binay’s preventive suspension by Ombudsman Conchita Carpio Morales hamstrings the Ombudsman in a way that has nothing to do with Binay. Congress must immediately pass a law to restore her independence—including from our courts.

The SC must end the practice of announcing a decision but releasing it only days later. Debate somehow took place before anyone read how it clipped the Ombudsman’s wings.

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The convoluted decision first nullified Section 14, Paragraph 2 of the Ombudsman Act. This prohibited courts from considering any remedy against Ombudsman findings, except the SC “on pure question of law.” The SC ruled that the law expanded SC appellate jurisdiction without the SC’s consent, which would be unconstitutional, and used terms inconsistent with court rules.

Second, it declared Section 14, Paragraph 1 “ineffective.” This prohibited court injunctions that would delay an Ombudsman investigation. The SC essentially ruled that an injunction is purely procedural. Although Congress sets court jurisdiction, the judiciary inherently has authority over all procedures once granted jurisdiction over something.

The SC thus rejected what I thought was a textbook-perfect argument by Solicitor General Florin Hilbay, that since Congress can abolish any lower court, it can limit its jurisdiction to reviewing final decisions by the Ombudsman and prohibit court intervention before the Ombudsman resolves a case.

Article VIII, Section 2 of the Constitution explicitly empowers Congress to define court jurisdiction, a basic check on judges in our separation of powers. Thus, I titled my summary of the oral arguments “Junjun Binay’s lawyers ask SC to rewrite constitutional law” (Opinion, 5/4/15).

Not only did this second point go unnoticed, the SC very curiously did not actually nullify Paragraph 1. Instead, this was declared “ineffective until the Court adopts the same as part of the rules of procedure through an administrative circular.” We teach students that a law is valid or invalid, but I have no idea what an ineffective law is.

Third, the SC discarded the “condonation” doctrine from the 1959 Pascual decision, where voters are deemed to absolve a reelected politician of administrative liability incurred during previous terms. The SC considered this decades-old doctrine inappropriate under the Constitution’s emphasis on accountability and questioned its legal basis. However, the change only applies to future cases.

The decision thus has no impact on Binay. Removing Section 14 validates the Court of Appeals’ temporary restraining order against Binay’s preventive suspension. However, this is moot because the Ombudsman already made a ruling dismissing Binay, who will continue to argue that condonation was valid when he was charged.

If the Ombudsman’s ruling superseded the decision, why did the SC nevertheless insist on ruling? Clearly, the justices felt strongly about nullifying the condonation doctrine. Justice Lucas Bersamin very intelligently dissented that the CA at the TRO stage had not yet applied condonation, so the SC was premature in nullifying the doctrine in that case.

Even so, why did the SC vote unanimously to hamstring the Ombudsman? Not only did the SC remove Section 14, it even ordered the CA to resolve Binay’s contempt charge against the Ombudsman. And again, how was Paragraph 1 merely ineffective instead of invalid?

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Fellow columnist Solita Monsod put it less technically: “The Supreme Court apparently thinks that the Ombudsman’s independence is only from the executive branch, and not from the judiciary. Good grief…. Where have these justices been?”

The Binay decision is the latest example of the SC expanding its already expansive jurisdiction by labeling everything a procedure and thus solely under its sole authority. The trick is to issue procedural rules that subtly redefine the underlying substantive doctrine. Professor Laurence Tribe taught that procedure is deceptively never purely neutral.

This began in 2007, when then Chief Justice Reynato Puno, addressing perceived government inaction against extrajudicial killing, created the SC’s “rulemaking power” from an arguably selective reading of Article VIII, Section 5(5) of the Constitution. In 2008, he issued guidelines advising judges not to impose imprisonment in libel cases. Now international judge Raul Pangalangan argued this should be done by amending the law, not through SC guidelines.

In 2012, the SC issued a TRO against the Senate sitting as the impeachment court of then Chief Justice Renato Corona to prevent it from examining Corona’s dollar deposits. Further, Corona unsuccessfully sought a TRO against the impeachment trial itself, despite then Senate President Juan Ponce Enrile’s boast that only the military could stop it.

In 2015, the loser in the Senate Electoral Tribunal (SET) case that declared Sen. Grace Poe a natural-born citizen seeks Supreme Court review of the decision.

Under the Constitution, the Senate and SET have sole jurisdiction over impeachment and a senator’s qualifications.

Our legislators should be indignant at how the Supreme Court has challenged their authority and the Ombudsman’s independence in removing Section 14. They should immediately amend Section 14 to preserve it while addressing the decision.

When President Aquino openly challenged the legitimacy of certain SC decisions during the Corona impeachment trial, I wrote that our political leaders and the people themselves are as much wardens of democratic principle as our justices. With the Ombudsman’s independence “pwned” by the Junjun Binay decision, we cannot forget this fundamental duty.

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React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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