Condonation reversal, praised and pilloried

The Supreme Court’s decision reversing the infamous condonation doctrine but only prospectively (Morales vs Court of Appeals, Nov. 10, 2015) has been both praised and pilloried by critics.

First, the facts. To understand the case fully, let me rewind the facts briefly. On March 10, 2015, Ombudsman (OMB) Conchita Carpio Morales placed Makati Mayor Jejomar Binay Jr. “under preventive suspension for not more than six months without pay during the pendency” of six criminal and six administrative cases being investigated by her office. These cases arose from alleged anomalous awards in the construction of the Makati Parking Building made during his first term of office (2010-2013).

The next day, March 11, Binay Jr. challenged his suspension via a petition for certiorari in the Court of Appeals (CA). On March 16, the CA issued a temporary restraining order (TRO) stopping his suspension on the ground that the alleged anomalous acts were done during his prior term (2010-2013) that had already been condoned by the electorate through his reelection to his current term (2013-2016).

On March 25, Morales filed a petition for certiorari in the Supreme Court assailing the CA’s TRO. She explained that the first paragraph of Sec. 14 of the OMB Law (Republic Act No. 6770) bars any court from issuing any TRO “to delay an investigation being conducted by the OMB … unless there is prima facie evidence that the subject matter of the investigation is outside … the jurisdiction of the OMB.”

The second paragraph of Sec. 14 allows only the Supreme Court, and not the CA or any other court, to “hear any appeal or application for remedy against any decision or finding of the OMB.” In short, Morales argued that (1) the CA had no jurisdiction to pass upon her actions, and (2) the condonation doctrine should be reversed for contravening the Constitution.

CA has jurisdiction. The 71-page decision, superbly written by Justice Estela M. Perlas-Bernabe and concurred in fully by eight magistrates (including Chief Justice Maria Lourdes P. A. Sereno and Senior Justice Antonio T. Carpio) and partly by one (Justice Lucas P. Bersamin) with four taking no part and one being on leave, is a scholarly dissertation of technical legal procedures, which I will now sum up as simply as I can for nonlawyers.

It held that laws passed by Congress cannot restrict the constitutionally-enshrined duty of the entire judiciary (not just of the Supreme Court) “to determine whether or not there has been a grave abuse of discretion … on the part of any branch or instrumentality of the Government.”

Consequently, the OMB Law cannot restrict the duty of the CA, which is a part of the “judiciary,” from hearing Binay Jr.’s petition for certiorari alleging “grave abuse of discretion” on the part of the Office of the OMB, which is an “instrumentality of the Government.”

It logically follows that the CA has authority to issue TROs against orders of the OMB, since such orders are inherent “ancillaries” to its jurisdiction over petitions for certiorari. TROs are mere “regulatory processes meant to prevent a case from being mooted by the interim acts of the parties.”

Moreover, the 1987 Constitution also (1) granted the Supreme Court the sole power, to the exclusion of Congress, to “promulgate rules concerning … procedure in all courts,” and (2) prohibited Congress from “increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.” Consequently, the OMB Law cannot restrict or amend the court-approved rules of procedure which allow the CA to hear cases against administrative rulings of the OMB.

Furthermore, the high court’s appellate jurisdiction is limited by the Constitution to decisions or orders of “courts” and does not include quasijudicial agencies like the OMB. By including appeals from rulings of the OMB, the OMB Law unconstitutionally increased the high court’s appellate jurisdiction without its advice and concurrence.

Condonation abandoned. The Court traced the source of the condonation doctrine from an old 1959 case (Pascual vs Provincial Board, Oct. 31, 1959) which was decided under the 1935 Constitution when graft was not rampant, and when honor, integrity and delicadeza were sacred values practiced universally.

However, after over half a century, times have changed, unfortunately for the worse; now, corruption has become pervasive, thereby impelling the present Constitution to mandate transparency, honesty and accountability.

After a thorough review, the Court held: “Election is not a mode of condoning an administrative offense, and there is simply no constitutional or statutory basis … to support the notion that an official elected for a different term is fully absolved of any administrative liability arising from an offense done during a prior term.”

Nonetheless, the Court ruled that the reversal or abandonment of the doctrine shall be given only prospective effect, because under the Civil Code, judicial decisions which “form part of the legal system … shall have no retroactive effect unless the contrary is provided.” I tried researching, but I found no jurisprudence authorizing retroactivity for abandoned doctrines.

In sum, the decision ruled that the CA has jurisdiction to pass upon the OMB’s rulings in administrative cases and that, henceforth, condonation by reelection can no longer be used as a defense.

Postscript. On Oct. 9, 2015, the OMB dismissed Binay Jr. from his office as Makati mayor, thereby mooting his CA petition.

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