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Ombudsman

Binay prevails

Kudos to Makati City Mayor Jun-Jun Binay for winning his legal battle against DILG’s Mar Roxas and the Office of the Ombudsman. Just last Monday, the Court of Appeals made permanent its earlier temporary restraining order which seeks to maintain the status quo. This time, the Appeals Court clarified that the status quo meant the situation prior to the service of the Ombudsman’s suspension order on the Mayor. This removes any and all doubts that the CA intended to maintain Mayor Binay in office despite the Ombudsman’s suspension order. This hence debunks the view of Justice Secretary Leila De Lima, who earlier opined that the CA’s TRO was moot and academic because meanwhile, the suspension order had allegedly already been served.

 I admittedly am not a big fan of the Philippine legal system. There’s the dismal 1-percent conviction rate for extra-legal killings before Philippine courts. There is the longest period of time in the world by which cases are heard by the courts, an average of five to seven years. There too is the perception of corruption amongst the ranks of public prosecutors and judges. But all told, the decision of the CA granting Mayor Binay injunctive relief was well-reasoned and consistent with jurisprudence. In brief, the CA ruled that since Mayor Binay had already been re-elected after the so-called City Hall Annex scam, all of his administrative liability, if any, is deemed extinguished by reason of his re-election. This is the principle of “condonation” and is premised on the fact that the people are sovereign. This is not a novel theory having been first recognized by the Supreme Court in the case of former Cagayan Governor Aguinaldo, and reiterated in the cases involving Governors Garcia and Salalima, all of whom were sought to be suspended similarly as Binay. This is why the principle is referred to as the “Aguinaldo rule”. The logic of the principle is that since the electorate decides who will serve them in an elective capacity, an erring official who has been re-elected is deemed “forgiven” by his constituents when despite the administrative lapse, he is re-elected. The Ombudsman’s position, mirrored by De Lima, is that the office has plenary powers to suspend officials which according to its legislative charter, is immediately executory and not subject to injunction. Here, the CA reasoned that there’s a difference between a suspension by way of penalty meted by the Ombudsman, and a preventive suspension preparatory to an administrative investigation. The former is immediately executory and not subject to injunctive relief. The latter though, and this is the suspension meted on Binay, is subject to judicial review. I find myself in accord with the line of reasoning adopted by the CA. In fact, in a case that I personally argued before the Supreme Court which sought to restraint the House leadership from filing an impeachment complaint against then-Chief Justice Hilario Davide, the Supreme Court, through the incumbent Ombudsman, ruled that our Court’s certiorari powers under the 1987 Constitution have  “cut the umbilical cord” between Philippine and  American jurisprudence. While American courts can opt to exercise judicial restraint, Philippine courts, under the 1987 Constitution, must decide cases involving alleged grave abuse of discretion amounting to lack of jurisdiction. This means that our courts must always exercise jurisdiction where there is an allegation of grave abuse of discretion. This was the allegation of Mayor Binay and hence, the duty of the Court of Appeals to decide. The victory is temporary. In fact, the Supreme Court has already scheduled oral arguments on the petition of the Ombudsman against the CA’s order. What appears to be going in favor of Mayor Binay is the fact that the Ombudsman sought but was denied injunctive relief to restraint the CA from restraining the office from suspending Mayor Binay. The Court’s refusal to issue a TRO, although not a ruling on the merit, nonetheless is tantamount to recognizing the validity of the CA’s actions thus far. While the odds are still against Mayor Binay since the Ombudsman was a former colleague of the incumbent Justices of the Supreme Court, the latters denial of the former’s prayer for TRO is recognition that there is no urgency nor an irreparable injury in the event the CA is not restrained. Congratulations are this in order to Mayor Binay and his legal team! ** ** Congratulations too to the UP Law’s Moot Court team that won the world championship in the recently concluded Freedom of Expression Moot competition in Oxford University. The team bested over a hundred teams worldwide that competed in Oxford and in various regional championship rounds around the world. The problem of the moot is of extreme relevance to freedom of expression in today’s Internet age. Could states limit the freedom to curtail hate speech that has led to a riot that injured over a hundred individuals? At issue, too, was whether Internet service providers should incur liability for materials posted through them. The winning team is composed of Pauline Gairanod (adjudged the best speaker), who hails from Zamboanga City, Modesta Chungalao from Baguio City, Gil Anthony Aquino, Raphael “Apa” Pangalangan, Rachel Miranda, and Gemmo Fernandez. A testimonial in their honor will be held on Monday 10AM with no less than Chancellor  Micheal Tan in attendance. Good job, team!

Criminal liability for DAP

This is one of our biggest wins. On Tuesday, the Court voting almost unanimously (because J. Teresita De Castro took no part) declared all the features of DAP which we impugned as being unconstitutional as illegal. Specifically, newspapers reported Budget Circular 541 issued by the Department of Budget and Management allowing it to withdraw “unobligated allotments of agencies with low levels of obligations as of June 20, 2012 to “augment existing programs and projects of any agency [emphasis by DBM] and to fund priority programs and projects not considered in the 2012 budget was declared unconstitutional.

The Court also annulled the following:

“1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

2. The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive;

3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA;

4. The use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant GAA”.

The Constitutional provision declared to have been violated by the DAP is Section 25 (5) Article VI of the 1987 Constitution which reads: “no law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

Now that the Court has declared the DAP as invalid, what happens to those who implemented it?

Here, a distinction should be made between those who implemented them allegedly as a “stimulus measure’, and those who gave them to the senators to influence their votes for the ouster of former Chief Justice Renato Corona. In any case, for both types of government officials, they are liable for graft and corruption.

For those who implemented the DAP in good faith, believing that this would stimulate the economy, RA 3019 penalizes those who “caused any undue injury to any party, including the Government, x x x in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”Certainly, violating the Constitution through illegal disbursements of public funds constitute a damage to the government whether or not the public officer actually benefitted from the disbursement.

For those who disbursed it and accepted it to influence the outcome of the impeachment trial of former Chief Justice Corona, the anti-graft law states that penalizes this as bribery, or “directly or indirectly requesting or receiving any gift, present, x x x or benefit, for himself or for any other person, in connection with any x x x transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.”

While the proceeds of DAP were allegedly for government projects, the reality is the benefit for the legislators will be the “tongpats”, or the commissions, which respected journalists Yvonne Chua and Ellen Tordesillas wrote could range anywhere from 10-50% of the total cost of the project. The element of the transaction wherein the public officer has to intervene in his official capacity is the removal of the former Chief Justice.

I have said it before and will say it again: resort to bribery to remove the former Chief Justice was wholly unnecessary. It was Corona himself that called attention to his own culpability of betrayal of public trust when he himself acknowledged not having declared the entirety of his assets in his SALN. Moreover, the Ombudsman had the goods on him: AMLAC records proving the bank deposits which the removed Chief Justice did not declare. As a Private Prosecutor in that impeachment trial, it angers me that the not-so-bright boys and girls of Malacanang had to taint the process with fraud when in truth and in fact, no Senator could have turned a blind eye to the evidence against Corona.

So what now? Well, we’ve started the cleansing when we charged three senators for plunder. Time now to charge more senior officials, including Cabinet members, and the senators who benefitted from DAP for graft. Anent the President—well, the wait won’t be too long. His immunity is only for the next two years. Hopefully by then, we’ve done away with hospital arrests for former presidents!

This column appeared in Manila Standard Today on July 3, 2014 http://manilastandardtoday.com/2014/07/03/criminal-liability-for-dap/

Joint Supplemental Request for Investigation and Complaint-Affidavit vs. COMELEC filed at the Ombudsman today

Text of the  Joint Supplemental Request for Investigation and Complaint-Affidavit   filed at the Office of the Ombudsman today, June 18, 2013, by individual members of the Automated Election System Watch (AES Watch) against the incumbent Commissioners of the COMELEC  for their failure to protect the sanctity of the ballot in the conduct of the May 13, 2013 elections. […] More →

The $10 million question

At long last, the die is cast. After repeatedly saying that Chief Justice Renato Corona need not take the witness stand in the impeachment trial against him, his counsel, out of the blue, assured the Senate that the CJ will take the witness stand. The promise though appeared to have a condition: that is, that […] More →

Battle Royale

Impeachment is once again controversial. In an unprecedented move, the House Committee on Justice lead by its Chairman, Rep. Neil Tupas Jr., voted overwhelmingly to defy a status quo order ordered by the Supreme Court on the impeachment complaint filed against the Ombudsman Merceditas Gutierrez. At issue is whether a second impeachment complaint by the […] More →

Revisiting the Ombudsman Law

That former police officer Rolando Mendoza complained about the inefficiency of Ombudsman Merceditas Gutierrez highlights the need for Congress to re-examine the Ombudsman as an institution created by the Constitution and by law. While it is the 1987 Constitution that first created the Office of the Ombudsman, it is a mere law that gave the […] More →

OMBUDSMAN’S HALF-BAKED INVESTIGATION OF THE FERTILIZER SCAM

Ombudsman Merceditas Gutierrez proves anew her loyalty to the Arroyo’s. As if on queue with the homecoming of Cito Lorenzo, she filed charges for mere malversation of funds against Bolante and Lorenzo instead of Plunder in connection with the Fertlizer Fund Scam. The charge does matter. Malversation is bailable, while plunder is not. Moreover, despite […] More →